Hong Kong Right Of Abode Application – Arguing Away Missing Periods Of Residence
Posted by The Visa Geeza / in Hadley Says…, Long Stay & PR / 38 responses
This article presents solutions to missing periods of residence when it comes about a Hong Kong Right of Abode Application
The essential approvability test for a Hong Kong Right of Abode application is that you have been continuously and ordinarily resident in the HKSAR for a period of not less than 7 years AND that you have taken concrete steps towards making Hong Kong your ONLY place of permanent residence.
“Continuously”, for the purposes of the test, effectively means that any absences from Hong Kong during that time were temporary and lasted less than 6 months.
Moreover, at the time you departed it must have been your intention to be absent temporarily only – as evidenced by what you leave behind in Hong Kong to return back to at the end of your temporary sojourn abroad.
The application form ROP 145 specifically asks for details, with reasons, in respect of any absences of more than 6 months, otherwise the Hong Kong Immigration Department do not expressly raise the issue – unless it is obvious, that you have indeed spent a great deal of time continuously outside of Hong Kong during the requisite 7 years.
And the collection of documents you submit in support of your application should effectively envelope any missing periods of residence and should consist of Hong Kong tax returns, proof of accommodation, official bills, employment confirmations and, ideally, your Statement of Travel Records for the entire time you have lived in Hong Kong.
Oh, and you need to ensure that you have no outstanding taxation liabilities here as well – otherwise, your case will simply not be approved!
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The Hong Kong Visa Geeza (a.k.a Stephen Barnes) is a co-founder of the Hong Kong Visa Centre and author of the Hong Kong Visa Handbook. A law graduate of the London School of Economics, Stephen has been practicing Hong Kong immigration since 1993 and is widely acknowledged as the leading authority on business immigration matters here for the last 24 years.
Jack
Hi,
I moved to HK in 2017 and have been permanently employed in HK until today (soon seven years). Due to Covid, I left HK in early 2022, but have come back regularly for short periods of time every six months except once during Covid. I’d like to apply for PR early next year.
Two questions that I’d like to kindly request your advice on:
1. Will the Covid border closures be a good enough reason for the ImmD to accept that I had one absence from HK exceeding six months during my 7 years? Or would work-related reasons be a better explanation?
2. As mentioned, I’ve been in and out (more out) of HK since early 2022, but only once exceeding six months (mentioned in 1). Can I support my application with my tax returns and employment contracts for the seven years? Will this be enough? I don’t have tenancy agreements for the full seven years, for example.
Thanks in advance!
The Visa Geeza
Yes and Yes.
Jack
Thanks and thanks!
Daniele
Hi there, I quit my job and moved out of hk for 3 months after those three months as my old employer got me back I went to immigration to transfer my employment (even though is the same employer)
They said the process will take four weeks,
It’s my 5th year in hk would that make an impact on my future PR application ?
Also what are the chances the immigration don’t accept my transfer ? So far it’s been very smooth even though I changed so many times in the past
Regards and thanks for your amazing help
The Visa Geeza
You’ll probably be OK – but ImmD will need to know what your state of mind was when you left for those 3 months – namely, was it your intention to depart permanently? When you apply for PR you will need to approach the application very carefully both in terms of the story you tell and the documents you supply in support. You can’t do anything about any of this now however, only at the time you apply for PR after 7 years.
Amu
Hello sir I’m was stying in Hong Kong 6 years. 2013 to 2019 , my 7 year complete sep 2020, but I m absent from June 2019 to July 2020 , I came to meet my wife in USA . I’m USA resident also. Suddenly comes COVID-19. I have accident then I have my back problems docter give bed rest , and have medical reports. So sir I want to know it Ill immigration accept..? My extension until sep 2021, please sir give some information thank you so much
The Visa Geeza
Sorry – absolutely no idea. So many moving parts to your situation it’s impossible to suggest how you might get on. In this instance you should seek professional advice.
Agatha
If I am a HK PR and away, outside HK. Know I need to be back within 2 years to HK so can I just return to HK for just a day within a year or 2 years? Will it be valid or must I stay more days in HK?
The Visa Geeza
It’s 3 years not 2 and yes just on entry through immigration will suffice. No need to stay any longer than a pass through immigration and be fully landed in HK.
Nick
Hi – I have been living and working in HK continuously for 5 years including covered by working visa, paid Hong Kong bills, not away longer than 6 months, paid HK tax etc
I have agreed with my employer for a 6 month unpaid leave of absence whereby I am travelling outside of HK. Throughout this time I continue to be employed, pay property bills, covered by working visa, pay HK tax
My travelling dates mean that I will be away from HK for 6 months and a few days. I can change them so I return within 6 months, but this will be a significant inconvenience
I understand that absences of more than 6 months can be explained, but does not being away for more than 6 months significantly improve my chances of a successful future application?
Thanks in advance
The Visa Geeza
Either way you will need to explain the time away. The 6 month rule is not hard and fast (ie. if you are just under ImmD not being interested in the reason for the time away). So tweaking a day or 2 either way does not make much difference.
guy le claire
i have been awayfrom hk for just over 3 years, it seems i will lose my hk perm res pr status… am i able to reclaim that up an upcoming entry?
The Visa Geeza
you will lose your right of abode by operation of law and be downgraded to the right to land. See: http://www.hongkongvisahandbook.com/how-does-hong-kong-right-of-abode-downgrade-to-the-right-to-land-materialize-and-what-are-the-immigration-implications-of-this/
NR
Hello sir. My wife holds a permanent hongkong identity card and i am on her dependent visa. Me and my wife have been out of hongkong now for around 14 months due to my bad medical condition. I have already renewed my 1 year visa and currently have 3 years visa. I am worried if there will be a problem in the hongkong immigration to get more 3 years visa extension. Your advise will be highly appreciated. Thank you
The Visa Geeza
As long as you are living in HK at the time your next limit of stay comes up for renewal then there should be no problem extending your visa once again at that time.
SIDDHARTH
HELLO SIR I WAS CAME TO HONG KONG ON A BUSINESS VISA OF ON ARRIVAL AS TO MEET MY CLIENT AT HONG KONG AND ALSO FOR SEEING NEW PLACES AT HONG KONG I STAYED 10 DAYS AT HONG KONG AT MY COLLEAGUE PLACE THAN I WENT TO MACAU FOR FUN AND CHILLING AND WHEN I RETURNED TO HONG KONG AFTER ONE DAY TRIP THE IMMIGRATION OFFICER DIDN’T ALLOW ME TO GET ENTRY AT HONG KONG HE FEEL MY REASON ARE NOT GENUINE AND SEND ME BACK TO MACAU. FROM THERE I CAME IN TRANSIT TO HKIA AND TAKE A FLIGHT TO INDIA
I JUST HAVE A QUESTION CAN I COMEBACK TO HONG KONG AS I HAVE MY CLIENTS AT HONG KONG AND THEY ARE WAITING TO MEET ME AND HAVE SOME DISCUSSION REGARDING THE GOODS I HAVE SOLD THEM.??
The Visa Geeza
You can only try. Just make sure you meet all the criteria to complete a successful visit (enough funds, confirmed accommodation, return ticket with confirmed reservation etc)
HtetS
I went to Raffles International College in Hong Kong and I am switching to a new school. I went to the immigration office and already extended my Visa. I’ve checked online and it’s still showing “in Progress”. I was told that it would take 3-4 weeks but it’s been longer than that. Will I need a new tourist visa to collect my extended visa or can I still use my old school’s visa to go collect it. I was told that my old school’s visa would expire in 4 weeks.
The Visa Geeza
If your previous student visa still has 4 weeks remaining then you will be in Hong Kong when ImmD grant you your extension of stay / change of school approval.
Michelle
Hi Stephen, great short article. I would like to clarify something though. In your article you said, “…unless it is obvious, that you have indeed spent a great deal of time continuously outside of Hong Kong during the requisite 7 years.” Does this apply for CIES HKID holders? Because we we were absent for quite a significant amount of time (according to the immigration office), but only because we are capital investors, so we are still running businesses outside of HK. Is there any chance of arguing this? Once again, thank you for your time. – Michelle P.S. We = My family and I
The Visa Geeza
Hello again Michelle – thanks for stopping by and asking this important question.
Please bear with me a short while – I need to set out the background to the visa type in order to give you a definitive answer
When the Capital Investment Entrant Scheme was first implemented it introduced, for the very first time, a category of ‘potential’ resident that had, until that time, not existed in the realm of immigration statuses (stati?) in the HKSAR.
Namely, foreign nationals could secure residency in Hong Kong ‘merely’ through the locking in of a set amount of capital into Hong Kong ‘assets’ as defined by Immigration Regulations from time to time; presently HKD10 million, previously HKD6.5 million.
Under the CIES programme the HKID allow holders of this visa type, and their dependant families, the privilege of residence in the HKSAR all throughout the time they have locked their assets into Hong Kong, ostensibly to benefit Hong Kong through that value seemingly flushing around in the economy here.
Whilst the CIES visa provides the opportunity for the holder to take up residence, there is no compulsion for them to do so. There is, unlike other jurisdictions, no ‘use-it-or-lose-it’ quality to the CIES visa.
Consequently, the question was then begged as to what would happen to CIES visa holders at the end of seven years when, essentially, it becomes possible to apply for permanent residency and thereby be freed from the asset lock in conditions which had prevailed previously?
For those CIES visa holders who have indeed taken up full time residency in the HKSAR throughout the prior 7 years and who can demonstrate that they have taken concrete steps towards making Hong Kong their only place of permanent residence (the “approvability test”) the process of converting to PR is relatively straight forward.
But, where the CIES visa holder manifestly does NOT qualify for the Right of Abode, the HKID inadvertently created a policy lacuna in that, such people should also be able to have access to their locked up capital once again and so should be granted an immigration status which rewarded them for committing their capital whilst not punishing them for not qualifying for the Right of Abode.
For those such CIES visa holders, seemingly yourselves included, you are entitled, automatically, to Unconditional Stay (“UCS”) 7 years after your first CIES period of stay was granted.
The difference between the UCS and the Right of Abode is quite straight forward. UCS is an administrative convenience afforded by the Director of Immigration, whilst the Right of Abode is a statutory right, enshrined in the Basic Law.
I have laboured the answer to your question in this way to illustrate to you how the HKID will be viewing your circumstances. Namely, the nature of the CIES visa anticipates people in your situation and sets out a ‘post-CIES’ immigration status where, by necessity or otherwise, you were never in a position to fully reside in Hong Kong nor put in place the vestiges of a life where you can properly declare that you’ve taken Hong Kong as your only place of permanent residence.
The bottom line is that possession of a residence visa alone, supported by frequent visits to Hong Kong, is not sufficient to qualify for the Right of Abode.
So the argument you are suggesting will not hold any water I’m afraid. The best you can expect to get is Unconditional Stay and, even then, you need to ensure that you all enter Hong Kong on at least one occasion each 12 months to maintain it – otherwise your 7 years of asset commitment to Hong Kong will all have been for naught.
I am sorry the news is not better for you.