This article deals with the question of whether time spent in prison in Hong Kong will break the continuity of ordinary residence for the purposes of a Right of Abode application after 7 years.
First Published on April 10, 2016
QUESTION
I am interested to know if there is anything I could do to strengthen the case of my application for the right of abode (permanent residency) and I am also unsure if having an application rejected could be to my detriment in any way.
Just to restate my background:
I have been resident in Hong Kong under a working visa since September 2008.
I resigned from my previous role in October 2014; my employment visa was valid until September 2015.
I served a 2 months custodial sentence between November & December 2014.
Since then I have been granted a 3 year working visa as of Q1 2015 for my current role.
I believe my 7 year anniversary has already accrued as of September 2015.
What do you think are my chances of successfully applying for right of abode are at this time, especially given that I was in prison for 2 months in the last 7 years.
ANSWER
Your time of imprisonment amounted to a complete break in your ordinary residence I’m afraid.
To this end, I’m afraid your 7 year continuity of ordinary residence only re-commenced when you secured your employment visa subsequent to the completion of your period of incarceration.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Can a Chinese spouse resident on the Mainland secure a dependant visa for Hong Kong?
QUESTION
My brother is married to a Chinese girl. He is Singaporean and coming to Hong Kong on a working visa.
Can he get his wife a dependant visa for Hong Kong?
They have proper legal marriage certificate from Singapore.
His wife is Chinese and staying in Shenzhen now, but she is from Shanghai originally.
ANSWER
The very short answer to this question is that, yes, your brother who is married to a Chinese girl will be able to secure a dependent visa for his wife now that he’s moving to Hong Kong to work. And naturally enough he wants to have his partner resident with him in Hong Kong during all of that time.
The thing about Chinese spouses is that if you are a permanent resident of Hong Kong, it is impossible to sponsor your spouse into Hong Kong for dependent visa; on the other hand, if you are a temporary resident such as your brother will be, he will be in a position to sponsor his Chinese spouse into Hong Kong on dependent visa, and the application process is just the same as it always is – he is going to have to be able to show that he can conceptually put food on the table and a roof over her head and that there’s going to be a need for the Immigration Department to be satisfied that the relationship is a genuine relationship.
Therefore there will be questions and calls for the kind of information that I speak to the reality that this is not a marriage of convenience, this is in fact a bona fide, genuine marriage. The only other wrinkle to an application for a Chinese spouse resident on the mainland is the process that is followed to secure the dependent visa.
On the one hand it normally is just a typical normal type of employment dependent vis application. But on the other she is going to as a Chinese national have to secure an exit entry permit from the Public Security Bureau with endorsement for Hong Kong. Once the dependenties was issued in Hong Kong, then the production of the dependent visa along with the entry-exit permit to the Public Security Bureau in the place where she keeps her family registration will lead to the requisite to exit endorsement for Hong Kong. And whilst that is a process that is handled on the Chinese side, the Immigration Department in Hong Kong expect that the dependent visa holder who is a Mainland resident entering Hong Kong on that basis.
So there’some work to be done in Hong Kong side and there some work to be done in China side, but all things considered, it would seem reasonable to assume that your brother will be able to sponsor his wife forendent to come to Hong Kong.
Ok, I hope this helps.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Given that some countries, like Australia, organise their immigration policy to address skills gaps in their economies with specific temporary visa types, you might expect that Hong Kong would have a thriving job finding + visa service industry.
We do, after all, issue more than 17,000 new employment visa approvals each year under the General Employment Policyand genuinely talented professional workers are warmly welcomed – on the basis they have a job offer from a credible employer here.
But in Hong Kong, most employers do not recruit foreign workers ‘sight unseen’, on the strength of a CV or even after an extensive series of video Skype interviews.
No, the typical scenario is that foreign national professionals visit Hong Kong ‘on spec’, make themselves available for interview locally and, at the end of a traditional style recruitment process, an offer of employment will materialize and then the process of securing the employment visa is embarked upon.
This is, in many respects, a risky process for the intending foreign national worker as he will usually have to give up a job in one country just to pursue the chance of employment in Hong Kong.
And, until both an offer of employment has been secured and an employment visa issued by the Immigration Department, the pursuit of a new life in Hong Kong could go terribly wrong.
Remember, it is not unlawful to look and interview for jobs as a visitor in Hong Kong.
And when (or if) you do finally get yourself established in the HKSAR, you’ll discover most every foreigner here took a certain amount of risk to get their start in Hong Kong.
Risk taking is, after all, what Hong Kong is made of!
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
It is NEVER a good idea to overstay your Hong Kong visa for the reasons set out below…
QUESTION
I previously overstayed my Visitor visa for a period of 13 months; I reported to the Immigration Department, was charged and at Sha Tin court I was convicted and given a suspended sentence of 6 months. I bought my air ticket and I was allowed to leave Hong Kong on my own without being formally deported.
This was in June 2008.
Later I tried to return to Hong Kong in 2009 but at the airport I was refused entry and I was told by an Immigration Officer that I can apply for a visa before coming to Hong Kong, as a visa on arrival is not available in my case.
I submitted my Visitor visa application through a friend of mine (who is a permanent resident of Hong Kong) but my application was refused.
2 years later (that is in 2011) I applied again for a Visitor visa via the same sponsor and once again my application was refused.
I wrote an email to the Immigration Department asking if I was blacklisted from entering Hong Kong.
I was told I am not blacklisted, yet my applications keep being rejected.
Can you kindly suggest any measures that I can take to apply successfully for a Visitor visa? I have a local sponsor in Hong Kong and any information/suggestion from you will be of immense help.
ANSWER
Yes, your situation is rather unfortunate as you are appreciating because it’s seven or eight years now since you overstayed your visa in Hong Kong and faced justice for doing that. And as you’ve clearly appreciated, there are costs and penalties to pay for not complying with Hong Kong immigration law, which I think all too many people, frankly, don’t take seriously.
Hong Kong is a great place and you may indeed wish to come back in the future. And as you’re discovering, oversaying whilst gets your time on the ground, in the immediate sense, it is in a sense kind of like, you know, mortgaging your future and your ability to be able to come back to Hong Kong. So it is very unfortunate.
Getting really down to the heart of it, if the Immigration Department have told you there is no blacklist, then that probably is technically accurate. However, each time that you make an application for a visa, the examining officer is going to take into account all the circumstances of your application and if they can see that you did have history of overstaying and indeed were convicted for that and then you departed, normally there isn’t any hurry on the part of the Immigration Department to let you back in because they can’t see any upside. So I’m afraid there’s not much you can do about it; you’re just bearing the cost and consequence of something that you have in your past. And, as these things can very often do, they can come back to haunt you.
I’m afraid that’s what’s happening to you now. So you never know. Just keep on making your applications. One day you might get lucky; but for the moment, I would imagine that the Immigration Department are not particularly interested in having you back.
Okay, I realise that’s not what you hoped to hear, but essentially,that’s the position that you’re in.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
First of all I want to say that your website is amazing, easy to understand with relevant information.
My question might be very simple but I cannot find the answer myself.
I need to apply for a working visa, I found that there’s two forms one is ‘Employment as Imported Workers’ and the other is ‘ID990A as professional’.
I only have a Diploma or certificate from my country which may not be a tertiary education and is not a degree in other area which is technical, I have experience in customer service, customer care, reception, and hostels back home and in Australia and now I have the opportunity to unfold myself and work in a hostel in Hong Kong.
In which category am I, what is the best I can do.
ANSWER
So the difference between the two particular application types that you’re looking at really gets down to the difference between being a professional with a visa issued for employment under the General Employment Policy, on the one hand, and on the other hand, the application to the Immigration Department under the Supplementary Labour Scheme as an imported worker which is administered by the Labour Department. And then when that process has played its way through, then the Immigration Department will clearly be responsible for issuing the visa.
So, the importation of labour route is really the supplementary labor scheme. And this is not applicable to you. This is, a program which sophisticated employers take advantage of through a long process of proving to the Labour department satisfaction that the particular types of skills that they are seeking to import into Hong Kong for projects cannot be found locally.
And, on the basis that that project is successfully completed with the Labour department, then the Immigration Department will grant visas for up to two years as a maximum to certain imported workers who fit the particular skills profile that has been pre cleared by the Labour Department as part of the early stage of that importation of labour initiative. So for you this is not relevant.
The question therefore is well, are you a professional for the purposes of the General Employment Policy? And can you expect, given the type of work that you’ve articulated in your question, to get approved to do that type of work?
Well, firstly, to be deemed a professional for the purpose of the General Employment Policy, you’re expected to be either a university graduate with two years post graduation working experience in a managerial or supervisory capacity or you have technical or vocational qualifications which you appear to have being a diploma holder plus five years post qualification working experience in the managerial or supervisory capacity, or if you’re merely a secondary or high school graduate, then you’re expected to have at least ten years post secondary working experience in the managerial or supervisory capacity.
In order to get over the first hurdle of being deemed a professional then, as a second part of the approvability test which the Immigration Department applies to any particular application for an employment visa under the General Employment Policy, you would need to show that you possess special skills, knowledge and experience of value to and not readily available in Hong Kong.
So I think this is where your problem lies because you might very well be able to squeeze yourself into the bracket of being a professional. But then when you turn your attention to the nature of the work that’s proposed for you, which is to manage a hostel, I think you’re going to struggle to convince the Immigration Department that the special skills, knowledge and experience are entailed in that particular activity.
Moreover, I suspect that the Immigration Department are not going to buy into the story that the skills required to run a hostel are not readily available locally. I appreciate that the hostel might be for foreign nationals, I appreciate that there’s a certain camaraderie and a certain sort of culture that prevails among hosteling arrangements globally and the types of people that use them, but for the Immigration Department, their mandate is to protect local jobs wherever possible. And in my experience, given the type of work that’s involved and your profile particularly, I would suggest that you don’t get your hopes up that you’ll get an employment visa in order to do that work.
One other option that might be available to you although it’s not clear from your question what nationality you are, but if you’re a qualifying national for a Working Holiday Visa, then you might be able to get temporary employment permissions to engage in work in a hostel, but that’s not really the question.
Okay, sorry the news is not great, but I hope you found it useful nonetheless.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
When considering whether to apply for your visa before or after relocating to Hong Kong, it’s important to weigh the pros and cons of each option in relation with the type of visa you are applying for
As a matter of fact there are some types of Hong Kong immigration status where the rules are very strict about where you have to be on the day your application is formally submitted.
For example, if you are applying for permanent residency, then you MUST be physically in Hong Kong on the day you file your application.
On the other hand, if you are making an application under the Admission of Mainland Talents and Professionals Scheme, then you HAVE TO be outside of Hong Kong when you submit your application paperwork to the Hong Kong ID.
But, for the most part, it doesn’t really matter where you are when your application is lodged, at least not from the perspective of approvability or whether the Immigration Department will look MORE or LESS favourably on your case.
If you decide to come to Hong Kong and apply whilst you’re here, there is an advantage if you are a ‘90 day national’. By this I mean, your nationality is granted a 90 day visitor visa upon arrival in Hong Kong (or, if you’re British you even get double this).
You see, as the HKID typically need 7-8 weeks to finalise a residence visa application, the 90 days you get as a visitor will see you through the entire process so it is a relatively easy experience sitting out the time it takes for you to receive the result of your application. No sweat.
On the other hand if you are a 7, 14 or even 30 day national and have filed for your residence visa whilst you find yourself in Hong Kong, the Immigration Department will not grant you any special treatment if you apply to extend your visitor visa whilst you seek to wait out the time to case finalisation.
So, in this case, you’re going to have to do the Shenzhen Shuttle to get a defacto extension to your limit of stay as a visitor – and each time you run the gauntlet of a possible refusal of entry – not a particularly pleasant experience.
No matter what nationality you are or how long the visitor visa permissions you get, if you have applied in Hong Kong, especially if you’re trying to get an employment visa, it is absolutely vital that you stick closely to the conditions of your visitor status. Do not be tempted to start working for your future employer as that will be unlawful if your visa is not yet approved.
There is ‘Catch 22’ though, if you are applying for a business investment visa, which I discuss in detail elsewhere in this Blog (and also in the Hong Kong Visa Handbook) so I recommend you check out those resources too before you make a decision about the best way start your application.
In any event, if your visa is approved, the way you activate your new status is to receive a visa label from the HKID, leave (if you’re here as a visitor – and you can go to Macau or China, it doesn’t matter – the key is to terminate your visitor status as you go) and then enter Hong Kong with your new visa label affixed inside your passport. This will then activate your new visa and start your period of stay as a resident.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
What is the story if your Hong Kong entrepreneur visa extension application is refused by the Immigration Department?
QUESTION OF THE WEEK
If my Hong Kong entrepreneur visa extension application is rejected, is there a grace period after the visa expiration?
If there is a grace period and during which I secure an employee visa, will it reset the permanent residency time counting to zero?
Thanks for your help!
ANSWER
As a business investment visa applicant the test for approval is that you need to show you can make a substantial contribution to the economy of Hong Kong once you get your approval.
The Immigration Department are essentially at the point of approval satisfied of your ability to make that substantial contribution.
If unfortunately, during the time that you’ve held the investment visa your business plan doesn’t really come to fruition, the question is will the Immigration Department deny your extension application or will they, in some way, give you an opportunity to sort of make good on your business plan understanding of course that when
planning a business, no battle plan survives first contact with the enemy.
The Immigration Department usually keep those applicants who have been granted a
business investment visa who upon review are not looking as though they’re
actually fully implementing a business plan that was originally projected they keep those people on a very short tight leash so the chance to get refused is of course manifest but by the same token the Immigration Department don’t want to
pull the rug from underneath you if you haven’t been able to fully deliver on
your plan; so in the instance where they’re not satisfied and there’s the potential for you to be refused an application in my experience they prefer to grant you an extension but as I say keep you on a short leash and give you an opportunity to deliver on your plan the next time around and the next time you’re around that you go for your extension usually after 12 months they have another good look at it to see
whether or not you are making a substantial contribution to the economy of Hong Kong; if you get refused what will happen is the Immigration Department will typically grant you a very short extension potentially if you’re here as a visitor by now, because your original investment visa has expired and you’ve been in the Twilight Zone and the only immigration status available to you would be a visitor visa.
They’ll usually give you sort of three days to 5 days to in a sense prepare your arrangements and then you can exit and then come back into Hong Kong in order to finalize your arrangements, close down your business and ostensively leave if on the other hand you decide that you want to stay even though your business investment visa extension has been denied then you will be able to seek to adjust your status subsequently from visitor through to employment if you have received a job offer for which you are obviously a professional, that you possess special skills knowledge and experience of value to and not readily available in Hong Kong and that the compensation is broadly commensurate with market rates in those circumstances you’ll also expect the Immigration Department to receive from you an undertaking that you’re going to close the business down and not engaging in any further so that they will be satisfied that you won’t be tempted to engage in the business on the side which would be unapproved activity if you’ve been granted an employment visa subsequently and in so far as the issue as regards permanent residency goes as long as you have a relatively short time spent on visitor status converting through to employment status then that will typically not break your continuity or residence of course as long as you’ve been in Hong Kong throughout all of that time and your settled purpose for being in Hong Kong hasn’t been in any way compromised.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
