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Can I work in Shenzhen on my Hong Kong employment visa?

So, just what is the deal with being employed ex Hong Kong but actually working in China?

QUESTION

I just graduated with a Master’s degree from a Hong Kong university. I am still a Hong Kong resident with student status. My university allows me to now apply for an employment visa.

Luckily, I managed to find a long term job here from a Hong Kong employer.

However, most of my work will be done in Mainland China (Shenzhen) and I will need to be in Mainland China most often during the year.

Could you let me know what kind of visa I should apply for in order for me to travel frequently between Mainland China and Hong Kong assuming the boundary will open fully later this year?

ANSWER

On the face of it, it appears that your question is relatively straightforward – what kind of immigration arrangements do you need to anticipate to allow you to have effectively Hong Kong employment but be deployed in China? However, there are some deeper issues that I’d like to address in this answer and I’ll hopefully give you something to think about.

So presently you’re in Hong Kong as a student visa holder; you’ve just graduated and as a result of you graduating from a Hong Kong university with a postgraduate qualification, you can then immediately adjust your immigration permissions from student through to the immigration arrangements for non-local graduates that will give you an employment visa. The Immigration Department will effectively rubbish, stamp that into your passport and that will then give you effectively a twelve-month employment visa where you can go out and you can work for anybody without needing to get the permission of the Immigration Department in respect of a particular job for a particular employer, effectively. It’s quite blanche, and at the end of the twelve months you seek an extension which the Immigration Department will give you usually for two years on the basis that you can demonstrate to the Immigration Department that you’ve got a bona fide Hong Kong employment with a Hong Kong employer. And it seems to me from your question that’s effectively all in place for you.

Now turning to the larger issue, which is if you’re going to be working for Hong Kong employer but principally based in China, then in effect you need to look north to the jurisdiction of China to understand what kind of immigration permissions are needed there.

This isn’t something that’s controlled in Hong Kong, and you can’t make an application to the Hong Kong Immigration Department in relation to China visas. Moreover, China employment visas are not within our skillset, so we deliberately eschew doing any China immigration work, focusing purely on Hong Kong. But I’ve included a link in the text to your question which sets out that there are changes afoot in relation to Chinese immigration rules. So you might want to review that and then do some independent research to identify effectively the kind of visa that you’re going to need in order to be, as you stated, deployed in China, notwithstanding the fact that you’re principally engaged to a Hong Kong employer with a Hong Kong employment contract. And there’s no doubt that there will be some suitable China visa for you. So I wouldn’t be too concerned about being able to to procure that status. I don’t think your plans are going to be thwarted in any way as a result of the circumstances that you find yourself in.

However, there is another question that sort of runs large throughout your situation and that is what happens to you in relation to your time in China whilst you’re working for a Hong Kong employer, and your ability at the seven-year mark to make an application for the right of abode in Hong Kong.

That is, even though you have been engaged by a Hong Kong employer and you have had a Hong Kong employment visa endorsing your passport, potentially all throughout the time that you’ve been working for that Hong Kong employer, can it be said in the circumstances of your life as they’ve been lived in China, that you have been ordinarily resident in Hong Kong during the time that you’ve been spent working for your employer in China?

And the test for ordinary residents is that for the purposes of a right of abode application subsequently is to show that you’ve been continuously and ordinarily resident in Hong Kong for not less than seven years. And any absences from Hong Kong in that time must have been of a merely temporary nature as evidenced by what you leave behind to return back to at the end of each temporary stay abroad.

So the concept of settlement in Hong Kong looms large throughout your situation and you need to be very careful about how you configure your life and how you organise your affairs in relation to Hong Kong, even though you’re spending a lot of time in China, because if for all practical purposes you secure your Hong Kong employment visa and then decamp to China and then only ever come back to Hong Kong occasionally to visit and you don’t maintain a home in Hong Kong and it can’t be said that you’re actually settled in Hong Kong if you have several years of that experience in China and haven’t maintained any of your connections to Hong Kong throughout that time, you may inadvertently break your continuity of ordinary residence.

Now, it doesn’t automatically follow that, just because of the circumstances that you’re in, that you will break your continuous ordinary residence. But you do need to do some thinking about how your life is going to be configured so that if it is your intention in due course subsequently to go on to become a permanent resident, you don’t fall afoul of the continuous ordinary residence and settlement rules that apply to getting a right of abode approval at seven years.

Hope this helps.

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