Hong Kong Visas Made Easy

What Chance Is There That ImmD Will Grant A Visa To A Foreign National Who Previously Overstayed In Hong Kong By Five-And-A-Half Years?

Posted by The Visa Geeza / in Employment Visas, Family Visas, Investment Visas, Special Programmes, Visitor Visas, Your Question Answered / 1 response

Overstayed in Hong Kong for a very long time previously…?

Great question this, not so much because the answer is mostly quite obvious, but because it gives me a chance to have a discussion about overstaying generally.

QUESTION

I was looking for a male helper and found a suitable one for our family.

However, he overstayed in Hong Kong and surrendered to the Immigration Department and has now gone back to his country. He overstayed for almost 5 and half years,

He has all the qualifications we are looking for.

My question is: will Hong Kong immigration let him come back if we apply domestic helper visa for him ?

Or we are just wasting our time by applying for a visa for him?

Thanks a lot.

ANSWER

Yes, you have kind of concluded for yourself towards the end of your question the likelihood of the Immigration Department granting any kind of immigration status to a foreign national who previously overstayed by five and a half years is just not going to happen.

There are a number of implications for people who overstay, but the most important one to consider from a long term visa perspective is the fact that you have a negative prior record and the Immigration Department naturally enough don’t articulate too widely what exactly negative prior record constitutes or how you can go about attaining one.

But there are a number of different things that in my experience tend to work against you in relation to future possibilities for immigration status in Hong Kong, and certainly overstaying is one of them. Certainly overstaying by five and a half years is really sending a message to the Immigration Department that this particular individual, for his or own reasons has made a decision that is going to blatantly break basically every facet of Hong Kong law by virtue of the fact that it is an overstayer.

Not only are we talking about these activities just by being physically in Hong Kong, being a contravention of Hong Kong immigration law, he would not have been sitting idly by for five and a half years; during that time he of course would have been working, and whilst he has been working he would have been working unlawfully, he would arguably not have been part of the tax loop,  so he would have been breaking revenue law, and ostensibly there is every possibility that he could have been breaking other laws whilst he was outside of his conditions of stay as a previous either resident or as a visitor or whatever his status was at the time that he first went into an overstay situation.

So the bottom line is that your immigration status in Hong Kong is absolutely sacrosanct. And of course people do make mistakes and sometimes they find themselves a day or two out of status. And the Immigration Department see that for what it is, you know, normal, typical human foibles, and they don’t penalise too heavily. They prefer to just deal with the process of regularising those slight technical overstays, and that puts an end to the matter very quickly. But in the instance where it’s manifestly obvious that a person has made the determination that they are going to stay in Hong Kong unlawfully going to slip under the radar screen, and until such a time as they are either apprehended or until they as in this instance surrender themselves, they have effectively made a determination every single day to break the law; and that obviously goes without saying that irrespective of how the punishment is dealt with via the court subsequently, that is an indication to the Immigration Department of what the particular person’s attitude is towards immigration law that represents a negative prior record as far as they’re concerned, and so there’s no chance that he’ll ever be admitted back into Hong Kong again, even if for example he presents himself at the border as a visitor maybe ten years from now, potentially just to come on holiday for a week or so as a package to, he’s going to run the risk of being refused entry even in those circumstances.

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Strategy On How To Craft An Argument To Appeal A Refused Hong Kong Right Of Abode Application

Posted by The Visa Geeza / in Long Stay & PR, Refusals & Appeals, Your Question Answered / 13 responses

An excellent question on the Right of Abode came in just now. Raises a really interesting point of professional practice the likes of which very rarely present themselves these days.

QUESTION

I have recently been declined Permanent Residency status from HK Immigration, but believe I have grounds to appeal, and would like your advice. 

I am a Canadian citizen residing in Hong Kong as an Ordinary Resident from October 2004.

From June 2008 – January 2009 I was out of work (no employment visa), but still living in Hong Kong, staying on a tourist visa. HK Immigration declined my application based on this time period stating that: 

“Being a person with visitor status at the material time, section 11(10) of the Immigration Ordinance Cap 115 under which any permission given to a person to land or remain in Hong Kong shall, if in force on the day that person departs from Hong Kong, expire immediately after his departure, is applicable to your period of stay in Hong Kong on visitor status.”

During this period I was searching for work, and was still paying rent and utilities in Hong Kong, holding and utilizing my Hong Kong bank account, and conducting myself with the intention of settlement in Hong Kong. I did have a new job contract which stated I could commence work when my new employment visa was approved which came through on the 12th January 2009.

I understand that there has been a break in my continuous ordinary residence of 7 months, however I believe I may have grounds to appeal based on:

I was residing in Hong Kong during this period searching for work (I have a contract stating that I would commence my new job based on this) with the intention (Which still exists today) of settlement in Hong Kong.

 – I was paying rental/utilities, had a bank accounts in place with the intention of taking Hong Kong as my place of residence.

 – The application for my employment visa was placed in November and the application timeframe has pushed out the period from 5 months to 7 months

 – I have all taxation forms for the last 7 years proving it is my intention to settle in Hong Kong.

 Listening to your podcasts, I understand I will only get one shot at an appeal.

 My questions are:

 – If I build an appeal based on the circumstances above, would I have a good chance of having the ruling over-turned and Permanent Residency granted?

 – Do you know of other cases where there has been a break in the 7 year continuous period but Permanent Residency status was granted? And if so, on what grounds was the break in ordinary residence over-looked?

Look forward to hearing from you.

ANSWER

Hi, thank you very much for raising this question.

I think you’ve been hard done by and I can see your frustration. It’s an interesting example for me because it’s starting to confirm to me in my own mind that there could be a six-month rule in play which the Immigration Department are prepared to accept as being a reasonable length of time that could be said to be administrative flux in your continuity of ordinary residence. What I mean by this is that you find yourself between jobs, and in the meantime your employment visa expires and you don’t have your approval for your new employment visa, so in that time you are out of state employment visa status. So the only status available to you is visitor visa, and there is no hard fast rule exactly how long that can be. And because there’s no published Gazette which sets out those time frames, you only learn by experience. So it could well be that they’re playing a hard and fast rule against you.

So the trick really is to take it to the appeals process and seek to ask the Immigration Department to confirm is there such a hard and fast rule? And if so, you know, how long is it? And then you need to go on and make your case out on the merits of the evidence of settlement as you stated them.

And this should then give you a good shot of appeal at best. And at worst it will give you a good solid foundation of facts upon which to mount a higher appeal later on if you so choose to do. That’s the strategy I would adopt in this case.

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What Pathways To An Employment Visa Exist For A Fresh, Foreign University Graduate Arriving In Hong Kong Seeking Career Opportunities Here?

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

Whilst the Immigration Arrangements for Non-local Graduates afford a clean pathway to working permission for foreign nationals freshly graduating from Hong Kong universities, the situation is very different if your degree is from overseas and you’re seeking to work in the HKSAR straight after university.

QUESTION

Hi Stephen,

I would like to ask, I’m a fresh grad student in interior design from Australia. I am seeking an opportunity in Hong Kong.

I had a few companies that are willing to hire me here in Hong Kong, but the problem is that the employment visa / working permit is an issue for them.

I would like to tap your expertise in this situation.

What other alternatives exist to manage this immigration issue?

ANSWER

Naturally enough, Hong Kong, like any other jurisdiction that cares for its younger population and wants to afford the best possible opportunities for their graduates as they can. It is the position of the Immigration Department to not approve applications for employment visas from completely fresh graduates of foreign universities that come to Hong Kong looking for opportunities here; it’s hardly surprising because, you know, the vast majority of countries, as I said, would also implement the same policy to protect jobs for their new graduates too.

So if you do have a very strong commitment to pursuing a career opportunity in Hong Kong, you need to, in a sense, stop anticipating that there’s a simple sort solution available to you and start considering that you’re going to have to start making an investment in relation to Hong Kong in a way that you might not have anticipated until now. So just, you know, blue skying this and thinking about the way to bring about a possible positive outcome for you. One opportunity that might exist is if you find yourself a job offer from a company in Hong Kong that has an office in Australia where perhaps you could spend six months in Hong Kong on a training visa with the expectation that at the end of those six months you would then be sent back to the Australian arm of the group of companies. You would spend two years in Australia working on the ground for the same organisation and then at some stage after you have qualified as a professional for the purposes of the General Employment Policy under Hong Kong immigration rules, then be transferred back to Hong Kong to work for the Hong Kong arm of that business as a full time employee; in those circumstances you would qualify as a professional because you’d be a graduate and you would have had at least two years relevant working experience in your field assuming of course that you have undertaken duties of a supervisory and managerial nature during all of that time. So that’s one way to think about it.

Another way to think about it is well, why not further your education in Hong Kong and go on to get a master’s degree, spend one year studying in Hong Kong. You won’t be allowed to work during that time though, but spend one year studying, get yourself an advanced degree and then immediately take advantage of the Immigration Arrangements for Non-Local Graduates which will effectively see you move straight into lawful employability without the need to have a particular job offer at the point of converting your student visa into the one year fresh non-local graduate arrangements under the immigration arrangement for non-local graduates. So that’s another key way that you could get in.

If you come from a background of commerce and you can muster up the requisite finance and you’ve got a half decent business plan and a sufficient business acumen to think about going into business for yourself – quite a risky strategy given that you’re freshly out of university. But if you’ve got all those resources collected around you, you might think about starting a business in Hong Kong and securing the consent of the Immigration Department to join in that business there. You’d have to show that you’re in a position to make a substantial contribution to the economy of Hong Kong (but I’m not going to spend too much time talking about that because I’ve dealt with it ad nauseam elsewhere on this blog). So that’s the business investment visa.

And then finally, if you come from a particularly well heeled family and you can show that you’ve owned assets in your own name for at least two years to the tune of a minimum of HKD10 million, you could, make an application under the Capital Investment Entrance Scheme which would take six to eight months to finalise.

But at the end of that process, you would find yourself being lawfully employable in Hong Kong without any further questions asked.

So that would represent an expensive, albeit a quite realistic, chance of securing the outcome that you are looking for so that you can be in Hong Kong to carry on your career here.

So those are the options in a nutshell from 39,000ft. I hope you found this useful.

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Can I Come To Install Equipment In Hong Kong Without An Employment Visa?

Posted by The Visa Geeza / in Employment Visas, Visitor Visas, Your Question Answered / 9 responses

Permitted activity under the Visitor visa category seems to be something of a grey area and in the final analysis it all boils down to the attitude of the Immigration Department for a breach of conditions of stay. However, some activities are self-evidently ‘employment‘ in nature and the answer to this questions addresses it squarely.

 

QUESTION

“Hello,

I work for a German company involved in the pharmaceuticals industry and I am traveling to Hong Kong for work related reasons (installing equipment) and wondering if I require a work visa?

Every place I look, it says ‘to take up employment’. If I work for a German company, do I need a visa to do business with another company there? Such as have a meeting? I will only be there for one week.”

ANSWER

This is a commonly asked question, in actual fact, because there seems to be something of a grey area between what is permitted activity and non permitted activity under the visitor visa. Well, the law works to the effect that if you’re coming to Hong Kong to take up or join in any employment whether being paid or unpaid, you need to secure the consent of the director of immigration in advance, and that translates itself into an employment visa application.

And in my experience, if, for example, you were to present yourself at the airport seeking admission as a visitor and you told the officer that you were coming to “install equipment”, I believe the immigration officer would take you to task for that. And, quite, possibly deny you entry on the basis that you didn’t have the requisite immigration permissions to engage in that activity.

There is a world of difference, however, between being compliant at law and non compliant, but being practically able to get away with things because it’s a very short term deployment and also you may well be sort of hidden away in the depths of some commercial building somewhere out of sight of prying eyes and being practically able to sort of get on with the things that you need to do in order to discharge your duties, as it were. But none of that would alleviate the issue of you having the incorrect immigration status to do that.

So under the visitor visa, engaging in business meetings or speaking at conferences, making sales calls, concluding contracts, fact finding missions, participating in product orientation, all of this is permitted activity. But in my experience, if you are discharging your employment duties in Hong Kong for your overseas employer, then an employment visa will be needed. And it seems to me that discharging your employment duties in this situation will definitely cover installing equipment; so that’s the bad news. The good news is that such visas are readily available and quite quickly issued.

Of course, there’s still a process to be followed, but in my experience, installing equipment for sure requires an employment visa if you are to be compliant.

I hope this helps.

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Can I Leave Hong Kong To Work Overseas At The Same Time As I Apply For The Right Of Abode In Hong Kong?

Posted by The Visa Geeza / in Long Stay & PR, Your Question Answered / No responses

Can you be both settled in Hong Kong, have taken the HKSAR as your only place of residence, yet go and work overseas all at the same time?

QUESTION

Thank you so much for your wonderfully informative website.

I have a question about the timing of starting a new job working for a non-HK employer and which job is not based in HK, in light of my interest in filing the Right of Abode application.

At the end of July 2014, I reach the 7 year mark required to file the Right of Abode application, and at which time I would have been with the same Hong Kong employer during the whole 7-year period.

I note that I have had a valid work visa since July 2007 and my latest work visa expires end of July 2015.

I also note that I’ve been sent to Singapore on long, albeit temporary, assignments that should not impact the Hong Kong residency requirement for my Right of Abode application.

I am interested in trying other jobs soon.

I have a job offer that is a one year contract for a company (that is in the same industry as my current employer) based in Singapore to work in Singapore.

The company is willing to wait for me to file the Right of Abode application before I start working with them.

Can I start working for the new company, say, a week or two weeks after I file the application (the new company will allow me to visit Hong Kong while the application is in process to fulfill any in-person requirements such as for any interviews) or is it advisable to wait longer or until I actually receive approval for HK permanent residency before I start working for the new company?

How long will the approval process take?  I plan to return to Hong Kong at some point to work after gaining some interesting and different experience at the new company in Singapore.

Thank you very much.

ANSWER

Yes, this is always a tricky one because the test for approval for the Right of Abode is you need to show, on the one hand, that you’ve been continuously and ordinarily resident in the HKSAR for a period of not less than seven years immediately prior to submitting the application, and on the other, you need to show that you both settled in Hong Kong and that you’ve taken Hong Kong as your only place of permanent residence.

So clearly here, if you’re thinking that perhaps your future lies away from Hong Kong, then it’s arguable that the fact of making those steps to set up your new arrangements in Singapore could derogate from the notion that you are both settled in Hong Kong and that you’ve taken Hong Kong as your only place of permanent residence.

So, to be absolutely bulletproof in this respect, my advice would be to postpone any plans whatsoever that you have for a life away from Hong Kong, so that you can quite clearly and honestly put your hand on your heart when you make the declaration, to the extent that you’ve taken Hong Kong as your only place of permanent residence and that the facts of your life on the ground in Hong Kong clearly demonstrate that you’re settled here. And then if subsequently, once your Right of Abode application has been finalised, approved and you are a permanent resident of Hong Kong, if new facts emerge that suggest that you might want to take up an offer of employment or pursue some other kind of activity – in this instance away from Hong Kong in Singapore, then that’s what that is.

And, as long as once you’re a permanent resident, you return to Hong Kong on at least one occasion in any three year given period, you will be able to maintain your Right of Abode. So my advice to you would be – don’t do anything that would compromise the idea today that you are settled in Hong Kong and that you’ve taken Hong Kong as your only place of permanent residence.

Okay, I hope you found this useful.

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Can My Dependant Child Go On To Become A Hong Kong Permanent Resident If I Am Not Married To His Mother?

Posted by The Visa Geeza / in Family Visas, Long Stay & PR, Your Question Answered / 5 responses

Children born in Hong Kong to a Hong Kong permanent resident have their eligibility for permanent identity cards established at birth. But what if the child is born to a Hong Kong permanent resident not married to its mother and where the child was born outside of Hong Kong?

QUESTION

First, many thanks for your time.

I’m a permanent resident of Hong Kong and my son (now 2 years and 5 months) was born in Malaysia and has a Malaysian passport.

I applied for a dependency visa for him in 2012 and was granted a one-year visa in November of that year. He has spent 8 months in Hong Kong so far.

His mother is not a dependant (indeed I’m still married to another woman) but there is no conflict between us – we want what’s best for the child.

Is it correct to say that if I can get my son on the 3 x 3 dependant visa pattern he will be able in the end to apply for a permanent ID card?

ANSWER

A child of a Hong Kong resident can go on to secure a dependent visa sponsored by that resident on the basis that both parents agree that the child should be resident with one of the others if not both of them in Hong Kong.

So in a traditional family situation, this doesn’t present itself as a problem because both the parents and the child naturally together in Hong Kong. But in a scenario such as this where one parent is a permanent resident of Hong Kong and the other parent is not a resident of Hong Kong, but the couple have mutually decided that their offspring best interest would lie being resident with the permanent resident in Hong Kong.

As we’ve seen from this example, it is possible to secure a dependent visa for the child so that the child can live with its permanently resident parent in the HKR. And so once, they get the dependent visa typically it’s one year granted in the first instance and normally where both parents are in Hong Kong and both parents are permanent residents if the child itself isn’t a permanent resident because it wasn’t born in Hong Kong, then the dependent visa that’s issued goes on a three-year pattern and a three-year pattern, so that altogether in this instance you can anticipate that once the dependent visa has been held for a full seven years, issued for one year and then renewed twice at three years on each occasion, then you get a full seven years continuous residence status endorsed in the child’s passport all throughout this time and on the basis the child has been resident in Hong Kong, been educated and all the rest of that good stuff in that seven years, then you can make an application at the expiry of the second dependent visa period of stay for verification for eligibility for a permanent identity card for the child and at that point, if the child is verified as being eligible for the issuance of a permanent identity card once they become of age to procure one, that’s the 11^th birthday. So you get the juvenile ID card, then, the passport of the child is endorsed to the extent that the eligibility for that permanent identity card has been verified and so a label is placed in the back of the passport and that then dispenses with the need to have a formal dependent visa. And so the child is then allowed to exit and enter Hong Kong and live here unconditionally as though it was a permanent resident at that point in the game.

So once the child gets to eleven years of age and application is made for a juvenile identity card a cheque is made at the time of the application. Consideration as to whether the child has been continuously or nearly resident with his parents in Hong Kong, and as they are juveniles, invariably they have been. And on the basis that has been satisfied then the child will be issued a juvenile permanent identity card and then they are effective permanent residents of Hong Kong.

I hope this helps.

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How Is My Dependant Visa Affected Under The Mainland Talents & Professionals Scheme If My Sponsor Father Goes Back To China To Work?

Posted by The Visa Geeza / in Employment Visas, Family Visas, Long Stay & PR, Special Programmes, Your Question Answered / 4 responses

What happens to a Hong Kong resident dependant visa holder sponsored by a parent holding a visa issued under the Admission of Mainland Talents & Professionals Scheme where the parent is unlikely to remain in Hong Kong – but the dependant wants to stay?

QUESTION

I am currently holding a dependent visa of which my father is the sponsor, under the Admission Scheme for Mainland Talents and Professionals.

 The situation is that:

(A). There is a chance that my father, the sponsor, would not be able to extend his stay since he has to spend more time working in mainland than in Hong Kong (i.e., his visa would expire in 2014 if not successfully extended, which technically means my dependent visa would expire at the same time) (B). However, I myself has an offer to start working at a multinational company this September.

 Given the prime goal of attaining permanent residency for me, I need your expertise and suggestions on the following questions:

1. If there’s a large chance that my father will not be able to claim permanent residency two years from now (when 7 years has been reached since first got HKID), shall I switch to employment visa as soon as I am eligible to do so?

2. I have held dependent visa for 5 years now. After year 7, can I apply for permanent residency independently (given that we have successfully extended our sponsor/dependent visas till then?) Or does my outcome depends on my father’s application/status?

3. If I do switch from a dependent visa to an employment visa, say in September of this year. Will the accumulation of residency start over from the new visa? i.e., Say I work in Hong Kong under employment visa for 2 more years. Does that give me a total of 7 years, or only 2, for the application for permanent residency? 

4. Aside, I understand that 7 years is only a precondition for application of PR. So if I do get 7 years from the scenario above (5 dependent + 2 employment), yet I didn’t stay much in Hong Kong in the 5 years as a dependent. Would that significantly impact my chance of claiming PR?

Thank you very much for answering this long list of questions.  I really appreciate your time and help.

ANSWER

A question that’s got quite a few components to it, but the answer is relatively straightforward, so I don’t think it’s going to take too long to be able to clear things up for you in relation to your ability to remain in Hong Kong on a dependent visa.

If your father’s admission of Mainland Talents and Professional Scheme visa isn’t available for extension, then correct, you’re going to have to leave Hong Kong unless you’ve been able to adjust your status into another type of residence visa; and from the facts that you’ve saved, it would appear that you have potentially a sponsor, ideally a large multinational who will be prepared to sponsor you for employment visa permissions.

In order for you to get those permissions, you will definitely have to pass the approvability test for an employment visa, which is that you’re going to have to possess special skills, knowledge and experience of value to and not readily available in Hong Kong, and also the multinational is going to have to conceptually show that they’re justified in engaging your services rather than those of a local person.

But the reality is that the Immigration Department very rarely second guess the hiring decisions of large multinationals. If your sponsor in this instance is in fact large multinational, it’s a fair assumption that you will be able to successfully adjust your immigration permissions through to an employment visa from a dependent visa if it does transpire that your father’s not in a position to continue to sponsor your visa accordingly.

Now, insofar as part two of your question – yes, once you have had seven years continuous ordinary residence in Hong Kong, and as long as you’ve had back to back residence visas in all of that time, which means time spent as a dependent and indeed time subsequently spent as an employment visa holder cumulatively, those two visa types over the course of the seven years will qualify you for the purposes of a Right Of Abode application; and there is in fact no direct association in relation to your own application for the Right of Abode with that of your father’s, assuming of course, that you’re over 18 when you make your application for permanent residency subsequently, I think that effectively gives you the answer in relation to question three, so I don’t need to discuss that any further.

As regards question four, at the point of making the application for the Right of Abode, you’re going to have to demonstrate to the department that any time that you spent spent away from Hong Kong in the seven years was of a merely temporary nature only as evidenced by what you left behind to return back to at the end of each temporary stay abroad.

Now, assuming that you have maintained your vestiges of your life in Hong Kong throughout all of those seven years, and even if you have spent a bit of time up in China for the purposes of your sort of the normal pattern of your ordinary life, then that type of time spent in China should not derogate from your ability to claim ordinary residence all throughout the time that you suggesting to the department that you have been resident in Hong Kong.

If for all practical purposes, though, you fundamentally upped sticks went back to China and spent maybe a couple of years cumulatively with only one or two months in that time back in Hong Kong, then it’s difficult to argue with the department that you have remained settled in Hong Kong throughout all of this time, because it could be deemed that Hong Kong was really just a jurisdiction of convenience and that your real time from a settlement perspective, was spent up in China, not in Hong Kong. So it will all depend on the nature of the time that you spent in China and the length of that time and what you were doing there. But fundamentally, if you’ve, for all practical purposes, maintain a full life and education and a professional career in Hong Kong, then the Immigration Department would likely conclude that any time spent out of Hong Kong will have been of a merely temporary nature, and so your continuity of ordinary residence should have been maintained accordingly.

I think that really covers all those bases for you, so I hope you find this helpful.

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