Hong Kong Visas Made Easy

I Run An Internet Company Based Out Of Hong Kong But Choose To Spend Most Of My Time Away – Can I Get Permanent Residency In Hong Kong After 7 Years?

Posted by The Visa Geeza / in Long Stay & PR, Your Question Answered / 2 responses

This post deals with the requirements for getting permanent residency in Hong Kong

The modern, connected economy throws up myriad ways for people to organize their lives and business affairs and, as can be seen from this great question, how might ImmD respond to an application for the Right of Abode where an internet entrepreneur bases himself here with his family but they choose to spend a considerable amount of time elsewhere?

QUESTION

Hi Stephen – I just stumbled across your website and found it to be quite informative, especially regarding the Hong Kong Right of Abode Application – Arguing Away Missing Periods of Residence.

It seems to fit my facts quite similarly.

My wife and I first arrived here in April of 2011. I was on a working visa but in some ways it was similar to an investor visa. I have always been an online internet entrepreneur, opening, running and closing dozens of online businesses. They have always been run from an offshore “haven” location where essentially there is no need to maintain books or file annual tax returns.

As my citizenships don’t require me to pay taxes on worldwide income and as I had been essentially a resident of nowhere, basically a perpetual tourist for the past many years, I haven’t really had to settle down in any way.

So, in early 2011, upon hearing from me that I wanted to move to and settle into Hong Kong, my lawyer arranged for my offshore company to buy a defunct Hong Kong company and then have that Hong Kong company sponsor me for an employment based visa in Hong Kong.

That all seemed to work quite smoothly and I was in HK in just a few months from start to finish.

Since arriving in Hong Kong with my non-Hong Kong wife in early 2011, we have recently had a baby. The problem is that we like Hong Kong and have made it our primary home, renting a nice flat, sponsoring a live-in DH, moved our bank accounts here, receive all of our mail here, pay our salaries annual taxes here, I own the business here, pay its fees, rent an office, pay the business profits taxes, etc., etc. – basically spend a lot of money in Hong Kong for all of these things to put up the appearance of being a full-time resident.

But, we really don’t like spending all of our time in Hong Kong. We have homes in several other countries, whether our own or family homes, and I really don’t need to be in any one location in Hong Kong or anywhere to run my business affairs.

Until our children are required to be in school for 8-9 months of the year, I’d prefer to keep traveling.

My work is all done via laptop and cell phone. Arguably I could say that some of this travel is necessary for work, as I do meet or host clients from time to time, but maybe 1/3 at the very most and I don’t keep receipts or claim them as business expenses. 

The only employees of the Hong Kong subsidiary are me and two admins, and they really only take care of Hong Kong affairs and little else. We do like spending some time in Hong Kong, maybe a few months per year in total, but spend the rest of our time on holiday, as much as 9-10 months of the year. I hope to continue this pattern until we have reached the 7 year mark in early 2018, at which time I’d like to apply for and hopefully receive our permanent residency.

And, despite what may seem like lack of ties to Hong Kong, we have by far much more attachments to Hong Kong than anywhere else in the world  , though my wife and I are each dual nationals of two different countries (4 passports between the both of us) so we certainly would call Hong Kong home above all else.

Would this pattern jeopardize our permanent residency application? It would be precisely at this time, when 7 years will have been reached that we’ll finally be forced to settled down and set our oldest child into primary school and we would plan to do so in Hong Kong.

I do want to ultimately obtain PR status, but also want to spend most of my time until that time traveling abroad. I’d like to find out now rather than later, for if I am wasting my time with this and there is a chance my PR application would be rejected, I’d just as well give up the HK office, the HK business, the 2 admins, the rented flat, the DH, basically all of it, move everything back offshore and rent a suite at the four seasons for the 2 months of the year that I might actually be in Hong Kong, for it would be a LOT cheaper.

So, am I wasting my money continuing this charade for many more years or will it all work out in the end as long as I maintain all of the things that tie us to Hong Kong?

So, can I get Permanent Residency in Hong Kong?

ANSWER

The test for Right of Abode for a long stay foreign national resident of Hong Kong is to be able to show that you’ve been continuously and ordinarily resident in Hong Kong for a period of not less than seven years, and that any absences from Hong Kong in that time have been of a merely temporary nature as evidenced by what you leave behind to return back to at the end of each temporary stint abroad.

You also need to show that you have settled in Hong Kong at the time that you make your application for permanent residency. So on the facts that we’ve got in this question it would appear that you’ve actually got in place all the necessary presumptive evidence to denote that you are settled in Hong Kong.

The fact that you’ve got a home, the fact that your child was born in Hong Kong, you’ve got a full time sponsored foreign domestic helper, you’ve got your business in Hong Kong, you’re reporting for tax purposes in Hong Kong, you have an office and you’ve got a couple of employees, and on the basis and on the assumption that you continue to maintain all of that in situ for the rest of the time that you spend in Hong Kong, on the strength of that evidence, there is enough presumptive evidence to show that you are, for all practical purposes, settled in Hong Kong.

Now this then turns to the nub of the question, which is how much time is expected for you to be spending in Hong Kong to settle the idea of continuous ordinary residence. Continuity is, on the face of it, established through the maintenance of immigration status, residents immigration status back to back throughout all of that time; and therefore we then just need to look to the number of days and how that impacts on the perception of your notion of being settled up to and including the seven year mark. If you’ve got a really good reason for you spending a lot of time outside of Hong Kong, then the Immigration Department will accept that, for what it is ostensibly in the vast majority of cases this  is settled through the fact that your commercial activities, your commercial endeavours whilst ostensibly based in Hong Kong are keeping you away from Hong Kong.

Question is then begged as to what about the situation where if you choose voluntarily to spend time away from Hong Kong because that’s what you prefer to do? And how would the Immigration Department perceive that as, in a sense, negating your idea of ordinary residence; the law, in actual fact, the common law, allows you to have a place of permanent residence, believe it or not, in two different places. You can be ordinarily resident in more than one place, any one point in time. But that’s an argument that you don’t really want to be having with the Immigration Department. What it’s better to do is to sort of lay down the necessary sort of tracks. Now anticipating that you’ll have a really good excuse at the seven year mark as to why you’ve spent all of the time outside of Hong Kong that you have given of course that that’s offset by the fact that you have everything else in place that shows that Hong Kong is effectively your only place of permanent residence, because of the facts on the ground that you’ve created in that time.

I also assume that at the time that you make your application, your child will be in school. And that’s again further good evidence as to the fact of settlement at the time that you make your application.

So it’s a tough one to definitively advise you on. However, my best advice would be anticipate that it’s the number of days in Hong Kong that are going to be the issue, and the time that you voluntarily choose to spend away from Hong Kong. And that’s something to a large degree you can control. The requirements are that the continuous, ordinary residents, effectively, are structured in such a way that even on the application form for Right of Abode, any absences that are less than six months don’t need detailing or specific explanation  at the time that you commence your permanent residency processes.

But the Immigration Department will go through a tally to look to see effectively how much time you spent in Hong Kong and all of that time. So my best advice really would be carry on with what you’re doing but don’t spend a lot of time away, in large blocks.

If you can organise your affairs such that you can come into Hong Kong for a week every two or three months or so, prefer a little bit longer than that, and maintain that sort of profile throughout all of the time that you’re in Hong Kong.

And then perhaps when your child gets a little bit older and the opportunity for your child to go to preschool then put the child in preschool. Perhaps that would be, you know, when he’s, he or she is three or four years of age, and show that the child’s been in preschool, even though when he’s not in preschool you’ve chosen to be elsewhere.

So the saving grace, as you’ve quite properly identified, is that you’ve got in place all the infrastructure to suggest that Hong Kong is your, effectively your only place of permanent residence, and the challenge then is just to map out how you decide, to experience your lives over the course of the next five years, and the choices that you make in terms of how much time you decide to spend in Hong Kong, in terms of number of days and also the number of trips that you make back to Hong Kong.

I mean, really avoid staying away for several months at a time, continuously, because that kind of sends the wrong message. But if you are coming back on a regular basis, even if you choose just to spend a small amount of time when you’re back here, I think you’ll find that the profile that you’ll build up over the course of the next five years should see you in good stead. And you’ll want to be able to persuade the Immigration Department that you’ve passed the test for approvability for a permanent residency application.

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As A Hong Kong Work Visa Holder, If I Own Shares In A Company Here Will It Disqualify Me From Getting A Student Visa?

Posted by The Visa Geeza / in Employment Visas, Investment Visas, Your Question Answered / No responses

This post deals with the options for a Hong Kong Work Visa Holder who owns shares in a company but also intends to get enrolled in a full-time Masters Degree Programme

Hong Kong being the dynamic ‘all-things-to-all-people’ type of place it is, oftentimes, certain life circumstances here throw up immigration challenges that need to be considered carefully to ensure that you do not inadvertently run afoul of the law and end up doing things that are no commensurate with your formal conditions of stay.

This question presents a number of issues for consideration.

QUESTION

I have been working in Hong Kong for the past five years under an employment visa and need today to apply for a student visa as I am no longer employed by my current sponsor-employer of record during my studies (full-time Masters Degree programme) starting in August 2013.

However, I have recently established a company in Hong Kong and have shares in this company.

Please could you counsel me on if I can apply for a student visa under this condition?

Also, will my 16 months of studies count toward my permanent residency?

ANSWER

At first blush, this question appears kind of complicated. But, as you’ll discover as I work my way through the answer for you, it’s actually quite a straightforward situation. It will require you making a particular application to adjust your status, but, all things considered, it is quite straightforward.

So presently you hold an employment visa, and as an employment visa holder, if you are no longer working for your current employer, then you’re allowed to remain in Hong Kong until your current limit of stay expires, whereupon you’re expected to leave. However, if you wish to join in a full time course of study, then you will have to adjust your immigration status from sponsored employment through to student visa.

On the other hand, if it was a part-time course of study as an employment visa holder, you could participate in that part-time course of study without needing to make any further application to the Immigration Department at this time. And in fact, the immigration department generally don’t issue student visas for part-time courses of study. Sometimes they do, but generally they don’t. So what you’re left with is adjusting your status from sponsored employment through to student, and the grant of the student visa should be straightforward. And the university will no doubt assist you to that end  because it’s a kind of run of the mill process for them.

Now, getting to the meat and potatoes of your question, which is if you are presently holding shares in a Hong Kong company, will it preclude you from getting a student visa? Well, we need to take a step back in any event, and look at your ability to hold shares in a Hong Kong limited liability company while you’re an employment visa holder.

Now, in the current policy, it’s perfectly okay for you to make an investment into either a public company or you need a private company and hold shares, those vehicles, so long as you are not actively engaged in the management and direction of that business. So if effectively, what you’ve done is acquired the shares in the company, and then you started to do some trading, or you’re starting to effectively engage in proper business activity with a partner or by yourself, then you need to be aware that, in any event, you would have to make an application to the Immigration Department to join an assigned business that your current immigration status. And normally, if you’re an employment visa holder, this requires you to get the consent of your existing employer to do this. But given that you’re no longer working for your current employer, obviously you’re not in a position to go about making an application to join in a side business formally. Therefore, what you’re left with is a dichotomy because you can’t be a full time student and engage and manage a business; at the same time, Immigration Department are principally not going to allow you to do that.

Therefore, effectively, my advice to you would be to put on hold your plans for your business or training activity and concentrate on your studies full time. And then when you come out of your studies you can pick up the pace on your formal business activities, if indeed that’s what you’re planning to do.

In that regard, when you finish your student status upon graduation, you’ll be able to make an application under the immigration arrangements for non-local graduates, which effectively mean that without having to procure an employer sponsor or indeed notify the Immigration Department in any express terms what it is that you’re doing in the wake of your formal graduation from your student status, as it were.

Effectively what you can do is then embark on your own business activity if that’s what you plan to do through the company that you own. And, all of that activity effectively will  be allowed to occur within twelve months after you’re finishing your formal course of study.

So finish your student visa, get yourself an immigration arrangement for non-local graduates approval, that will then effectively, if I’ve done the mathematics right, give you about two and a half years from now, and that, as you can appreciate together with the five and a half years or so that you’ve been in Hong Kong five years as it were, is going to take you well past the seven year mark.

So when you are at the full seven years you can make an application for the right of abode and all the time that you’ve spent as a student and indeed subsequently as a holder of an  immigration arrangements non-local graduates visa, that will allow your continuous ordinary residence to be maintained at all times. So you’ll be able to adjust your status from temporary residence through to permanent residency and you’ll secure the right of abode.

So all things considered, you’re in pretty good shape, but what you need to be very mindful of is exactly what it is that you’re going to be doing in relation to the company that you hold shares in whilst you’re a student visa holder.

At the very, very least you need to make an application to the Immigration Department to get their permission to engage in any kind of business activity whilst you’re a student visa holder in relation to your own company. But my best advice is based on prior experience in this area, it’s just to put your head down, get on with your studies, adjust from student through to immigration arrangements for non-local graduates. No further recourse at that time to the Immigration Department for permissions to join in the business that you own shares of and, once you get to the seven year mark, you’ll be able to convert through to permanent residency.

And the issue of you holding shares in the company should never present itself as a problem. I hope that helps.

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My Girlfriend Is In Detention Prior to Removal – If I Marry Her Will She Be Able To Get A Dependant Visa?

Posted by The Visa Geeza / in Family Visas, Refusals & Appeals, Your Question Answered / 5 responses

This is a sad situation for a couple who find themselves in a maelstrom of immigration difficulties caused by a less than sensible choice some time previously.

QUESTION

I am a permanent resident in Hong Kong and am planning to marry my girlfriend. My girlfriend is in detention prior to removal. She’s from the Philippines. I wanted to get a sponsored dependant visa for her after we get married.  The problem we have is that she is now under detention in Hong Kong under Immigration Ordinance section 32. Due to the borrowing of a passport to others to use. She have already signed a letter with the Immigration Department that she will not come back to Hong Kong and will soon need to go back to Philippines. What is the chance of me getting her back once we get married?

ANSWER

Yes, I can state that you find yourself in a very difficult situation here. The likelihood of you being able to persuade the Immigration Department that your relationship is bona fide and has merits in of itself, coupled with the problems associated with her manifestly poor immigration record under express undertakings that she will not seek to return to Hong Kong, it’s, in my opinion, that the likelihood of you being able to bring his young lady back to Hong Kong on the dependent visa sponsored by you is probably very slim indeed.

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Hong Kong Immigration… What Does It Mean…Roof-Over-Head-Food-On-Table ?

Posted by The Visa Geeza / in Family Visas, Musing / No responses

In this short piece I discuss how the Hong Kong Immigration Department assess the bona fides of a sponsor seeking Hong Kong dependant visa permissions for his/her family to join him/her in the HKSAR.

Over the last 20 years or so I have coined a number of phrases in Hong Kong immigration parlance.

‘Roof-Over-Head-Food-On-Table’ describes a situation where, if you are seeking to sponsor a loved one in order to join you in Hong Kong as either a dependent visa holder or, in certain circumstances, a prolonged visitor visa holder, the sponsor that’s going to be supporting that application needs to be of sufficient financial means to be able to provide a home to the loved one under the visa permissions, and also to be able to take care of their emotional, educational and financial and sustenance needs.

So, in that regard, the Immigration Department are looking to see that the sponsor literally can put a roof over the head of their loved one and food on the table of their loved one, in addition to all the other stuff that I mentioned as well.

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Will The 2 Years I Spent Studying In China Break My Continuous Residence For The Hong Kong Right Of Abode?

Posted by The Visa Geeza / in Long Stay & PR, Your Question Answered / 10 responses

Circumstances sometimes conspire against foreign national residents here who find themselves in a quandary as to whether or not their continuous ordinary residence here has been broken due to decisions made (voluntary or otherwise) earlier on in their lives in Hong Kong. In this situation, will an application for the Right of Abode fail?

QUESTION

“I have been resident in Hong Kong for 6 years and 2 months. First as a dependent and now under non local graduates scheme. I have had a residence throughout this period, owned a property for part of the period (sold due to divorce). But I was studying in Beijing for 2 years during this time and returning to Hong Kong during holidays and at least every 2 months. I also have a child in Hong Kong who lives with my ex wife who visits me regularly. Will my period of residence only be deemed to start when I returned to Hong Kong in February 2011 and re-secured an employment visa? Essentially, has the period I was travelling in and out on a visitor visa stopped my period of residence for Right of Abode purposes even though I was ordinarily resident under the plain English meaning. You may assume I have all necessary paperwork to show tenancies, bank details, tax returns etc.”

ANSWER

In order to qualify for the Right of Abode in Hong Kong, you have to show that you’ve been continuously an ordinarily resident for a period of not less than seven years. You need to upheld a residence visa throughout all of this time, and any absences that manifested themselves during those seven years need to have been of a merely temporary nature, as evidenced by what you leave behind to return back to at the end of your temporary stay abroad.

So in this question, the issue is whether the two years that you spent not holding a residence visa, being outside of Hong Kong, studying in Beijing, and then ultimately returning back to Hong Kong, whether that in your life circumstances, together with the fact that you have family in Hong Kong, or there’s a child that you’ve been returned back to throughout those two years, will that time spent in Beijing serve to break the continuity of ordinary residence for the purposes of that Right of Abode application?

In my experience, the answer is I think that you’ve probably broken your continuity of residence. Unfortunately, although the concept of permanent residency is granted on the strength of the notion of settlements, and you certainly have an opportunity to put forward an argument once you’ve been here for seven years to suggest that even though you did spend a couple of years on a temporary sojourn abroad, you did have everything in place throughout that time to suggest, through your pattern of behaviour, and the fact that you returned back to Hong Kong once you set to a complete, that that time spent away did not in fact break the continuity of ordinary residents.

But it’s one of those situations where you only know once you have made your application. The challenge, I think, is going to be that the Immigration Department is probably going to apply the hard and fast rule against you. Suggest that because you didn’t have a residence visa during those two years, and perhaps the circumstances in your life precluded you from possessing that residence in any event or by suspect.

But my earnest advice is get to seven years and give it a try. It doesn’t cost you anything. Application argue forthrightly that you were settled in Hong Kong throughout all that time. You did have a child, you did come by, it was just that you didn’t have the necessary circumstances to avail you with a residence visa for Hong Kong and consequently you were in a position to possess one.

That’s the argument that I had at the moment usually only a time spent in Hong Kong as a visitor during the state of administered flux.  But give it a try, good luck.

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How Can An Overseas Company Temporarily Sponsor Hong Kong Employment Visa Permissions?

Posted by The Visa Geeza / in Employment Visas, Your Question Answered / 2 responses

A frequently experienced conundrum: How can a foreign company temporarily sponsor Hong Kong employment visa permissions for its employees and contractors who need to work here in pursuit of a commercial arrangement which is of an indefinite or fixed duration here?

QUESTION

How can one visit and deliver short-term (typically 1-5 days duration) training courses in Hong Kong on behalf of an international training company headquartered in New York and which has a local office in Hong Kong.

The training would be delivered course-by-course under an ‘umbrella’ contract with the Hong Kong company i.e. no direct employee relationship, on an episodic basis to the Hong Kong office through an overseas Limited Company in South Africa  whilst travelling on a South African Passport.

What visa and application process would be applicable? It seems that different countries tend to treat this quite differently with some granting a business visa on written request from the host company, or in other cases allow this type of activity under a short-term waiver e.g. Singapore.

I am sure this must be a common situation, but I can’t see how this can be handled. Hong Kong Business Visas appear to stipulate you can’t work or provide a service or am I misreading the intention?  I hope that I have provided enough detail and it is succinct enough.

Thanks very much in advance and looking forward to your reply.

ANSWER

Yes, this really is a conundrum where you as a foreign company have received a contract to deliver services on the ground in Hong Kong, and now you’re attempting to understand what immigration permissions are suitable in your circumstances; and of course the Immigration Department’s website is not particularly lucid as to how you go about doing this and in actual fact you need to engage in a little bit of fancy footwork to achieve the immigration outcome that you’re looking for, but it is completely doable.

So first, let’s just deal with the issue of temporary visitor visa permissions and your ability to possibly deliver the training under the visitor visa. As a visitor you are not allowed to take up employment, whether paid or unpaid, without the consent of the Immigration Department. So business visitor, even though practically you get a 90 day period of stay when you arrived is not the correct immigration status in these circumstances, irrespective of how it works in other countries. Therefore, the question is begged as to how you go about creating a situation where your  entity that’s delivering the services is able to properly sponsor the party that’s going to be practically delivering the services for immigration permissions during the time that the training is going to be delivered.

So in effect, what this is going to involve is your South African limited liability company is going to have to establish a representative office here. And, in the throes of establishing that representative office, all the corporate details and information of the South African company will be presented to the Commissioner for Inland Revenue who registers the presence of the representative office.

And then all the similar documentation that’s required for the registration of the representative office is submitted to the Immigration Department in support of a Hong Kong employment visa application, citing the newly established rep office of the South African company as being the sponsor of the permissions for the person that’s going to be delivering the training on the ground; there will have to be a contract of employment between the Rep office entity and the individual person that’s going to be providing the services and the approvability test in relation to that employment contract.

And the party that’s going to be delivering the services, will apply and will need to show that they do possess special skills, knowledge and experience of value not readily available in Hong Kong, but on the basis that party is effectively coming to Hong Kong with the South African entity,  possibly even being the same owner of the South African entity that should just be a formality, but you will need an employment contract to cover those bases.

You’ll need to show the contractual paper chain between the various entities, New York into Hong Kong, then Hong Kong into the South African entity, effectively setting up the nexus for the Immigration Department so they can see how this commercial arrangement came into place and how in fact your South African entity and the individual himself who’s going to be delivering the training need to be on the ground for the purposes of  fulfilling their obligations under this contract.

Now the question is also begged as to given the episodic nature of the  training that’s going to be delivered in Hong Kong. In fact, should you be making an application for a twelve-month limit of stay which will cover all future sort of episodes during that time, or will the episodes be of such an infrequent nature that you’re going to have to make an application each time that you’re intending to come through to Hong Kong to deliver this training.

Of course much will turn on the frequency with which you’re supposed to be delivering the training and in fact exactly what the contractual paperwork between the various parties reveals as being the frequency for the delivery of the training. But as far as you possibly can, if you can make an argument to the department that the episodic nature will be very frequent such that it’s impractical for you to have to keep making a new employment visa application needs time to deliver this temporary training, then you could probably get the Immigration Department to grant you a one-year period of stay to cover all these bases.

So just to recap, there is a solution. It involves your South African company establishing a representative office. You need to make an application for a Hong Kong employment visa to be sponsored by that Hong Kong rep office of the South African company. You’re going to have to disclose all the commercial arrangements that have given rise to your opportunity in Hong Kong. You’re going to have to show to the Immigration Department what the track record of your rep office sponsoring entity is in South Africa. So that’ll require you revealing copies of your financial accounts and another information that will allow the Immigration Department to conclude that the Hong Kong Rep office can in fact be a bona fides sponsor for these foreign – national employment visa permissions to be granted on an episodic or temporary basis.

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How Are Fiances Prior To Marriage Treated By The Hong Kong Immigration Department?

Posted by The Visa Geeza / in Family Visas, Your Question Answered / 1 response

The issue of fiances prior to marriage and how the Hong Kong Immigration Department treat them is often confused so I was happy to receive this question recently.

So, how are fiance’s prior to marriage treated by the Hong Kong Immigration Department?

QUESTION

My fiancé is a Philippine resident working in Hong Kong for the past 4 years. She met with a divorce lawyer and is filing for divorce from her Philippine husband.  Will be uncontested.  The lawyer from Hong Kong said the divorce will proceed faster if we show the court we filed for a fiancé visa and showed that to the court.  Can we file for fiancé visa during the divorce process?   I am an American citizen, spent a week there earlier in the year.  I qualify on my end. 

ANSWER

Unlike countries such as Australia, Canada, America and New Zealand, Hong Kong doesn’t have a formal fiance visa as such. That is an immigration status that’s designed specifically to allow a couple who are engaged to be married in Hong Kong and who need to have some time together in Hong Kong prior to the completion of the legal formalities, which results consequently in a dependent visa upon application; in such instances the Immigration Department will receive an application from the non-resident partner on the basis of an extension to her or his visitor visa pending the completion of the nuptials.

So, effectively this is an out of pocket positive act of discretion on part of the Immigration Department to allow the couple to remain together until the formalisation of the marriage occurs through the complete ceremony. And usually the Immigration Department don’t afford any longer than a three-month period of stay as an absolute maximum to accommodate  such fiance type scenarios.

So whilst I can understand what your divorce lawyer is attempting to accomplish, unfortunately there isn’t a formal fiance visa as such that’s going to help you strategically move your fiance’s divorce from her previous partner along, unfortunately. So, yeah, that’s how fiance visas are dealt with in Hong Kong.

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