Losing Hong Kong Unconditional Stay Status Due To Studies Abroad – A Family’s Dilemma
Posted by The Visa Geeza / in Long Stay & PR, Refusals & Appeals, Your Question Answered / 5 responses
One of the more upsetting parts of being a Hong Kong immigration consultant is learning that one family member alone, due to an unfortunate combination of circumstances, finds herself the odd one out by not having been able to correctly manage her visa status here – and all, essentially, through no fault of her own.
QUESTION
“Hi, My mother married a Hong Kong-Chinese national (step father) and sponsored my stay in Hong Kong to study when I was a child. I stayed and grew up in Hong Kong for more than six years and was holding unconditional stay status. My parents opted to send me to Malaysia to finish my secondary school up to tertiary school. I was not able to come back within one year of leaving Hong Kong. Before I reached 18, my mother reapplied me for sponsorship, the immigration delayed the response for my application and when I ultimately reached my 18th birthday, then they informed me I was too old. I came back to Hong Kong four years after my departure and I was forced to be a Visitor.
I have heard some people with the same case as mine (departing Hong Kong for an extended amount of time for studies) and where able to keep their residence status because they were STUDYING when away. I really want to be reunified with my family even though it was more than ten years when I first left Hong Kong. Among my mother, father and two siblings I am the only one not holding a valid I.D. card because of this.
Any thoughts?”
ANSWER
This is a particularly vexing issue for the person who’s lost her unconditional stay status because unfortunately it has meant the de facto segregation of her from the rest of her family members which is a great shame in actual fact, and I really feel for her.
The issue really boils down on to the fact that once you get unconditional stay status, effectively you have to meet the single condition of that stay which is that you have to make a physical entry into Hong Kong on at least one occasion in any given twelve-month period of stay, and if you don’t make that single entry into Hong Kong in those twelve months the status of unconditional stay is relinquished by operation of law, and that’s effectively what has happened to cause this problem in the first place. Moreover, as we can read also, the problem is further compounded by the fact that this lady was approaching her 18th birthday, although it’s not exactly clear how far in advance of her 18th birthday the application was made, but her mother made an application for a dependent visa for her, and it would appear that by the time the dependent visa application was finalised by the Immigration Department, she’d crossed the 18th year and she was no longer eligible for dependent visa. Consequently, the only immigration status that she has available to her is a visitor visa. That must feel terrible each time you come back to Hong Kong and know that all of your family members are complete residents and you are just here as a mere visitor.
As I say, the problem stands from the fact that unconditional stay is a simple, hard and fast rule – one entry every twelve months, as is the dependent visa. Once you get to the age of 18, irrespective of the circumstances that surrounded the actual application itself, you’re no longer eligible for a dependent visa. That’s kind of in a sense, the bad news. I do have a little bit of good news which, I’ll share with you subsequently, but for the moment I’d just like to address the issue about these other circumstances that you’ve heard of where people who have departed Hong Kong for an extended period of time in order to study but have kept their residence status as a result of them studying. I suspect that what you have heard here is a slightly different situation. It would relate to those people, particularly of a younger age, who have had residence visas endorsed in their passports and they’ve then subsequently gone on to make an application for a permanent identity card, and even though they’ve spent a great deal of time outside of Hong Kong whilst they were holding residence visas, the fact that they were studying abroad didn’t actually break their continuity of residence for the purposes of getting approved under the Right of Abode which requires continuous ordinary residence for a period of not less than seven years. Because any time that they would have spent outside of Hong Kong studying would have been done on the basis that each time they made an exit to go continue their studies overseas, they were departing on a merely temporary basis only, and consequently they subsequently returned to Hong Kong and had their residence status still valid inside the passports, reflecting the fact that they did have the continuing connection to Hong Kong even though they were temporarily studying overseas. Thus, I suspect that you can probably differentiate those cases from your particular circumstances, which, as I say, is really driven by the fact that you lost unconditional stay and you’d end in qualify for a dependent visa because of timing issues.
Sad said of, but all’s not lost. My experience suggests that the Hong Kong Immigration Department will take your personal circumstances very much into account. If you can get a job offer and then make an application for an employment visa, which would be in a sense, your new rationale for remaining in Hong Kong because presently the Immigration Department don’t have any circumstances that will allow them to apply existing immigration rules and regulations to your circumstances to give you the opportunity to be together with your family. That is, there’s only the visitor visa that’s out there for you. However, if you can procure a job offer and get a sponsored employment moving in your favour, I think you’ll find that the Immigration Department will take the extenuating circumstances of your family situation into account. And so long as you’ve got an employment visa sponsor in hand, you stand a really good chance of being approved for an employment visa under liberalised consideration criteria.
So I would suggest that you get yourself a job offer, make an employment visa application to the Immigration Department and, as part of your application, reveal everything that you revealed to us in your question today, and I’m 99.99% confident that the Immigration Department will grant you a visa as a result of your personal circumstances.
All the very best.
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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.
