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I may be the middle of my NYC break but immigration stops for no man!

Just before I left, I received the following question in regards to a Right of Abode application – which required me also taking a look at her documents. I’m grateful for the questioner’s permission to include our dialogue here on the Visa Geeza blog.

QUESTION

Hi, I got your details through Phil Whelan on RTHK Radio 3.

I just had my PR refused by Immigration because I was not covered by a work visa the entire time I have resided in Hong Kong.

During this period I took employment in Macau twice but I never lived there, I traveled daily via the ferry to Macau and back.

So each time I returned (every day) I got another 90 day visitor visa.

I applied for my Hong Kong permanent identity card via the online process and submitted rental receipts, Hong Kong tax documents etc. I can show that during the last eight years I have lived here exclusively.

Do think I have any chance of an appeal? I can send an email copy of the refusal letter I received. I assume there is a time period where I must act to request an appeal.

Thanks for your advice.

FIRST RESPONSE

Please email me a copy of your entire application and I’ll take a look and give you an opinion. Please include the copies of your correspondence with the HKID – send to: sbarnes [at] hkvisacentre [dot] com. Please also see this post.

INFORMATION SUPPLIED

Please find the attached copies of my PR application and supporting documents which I submitted online. The denial letter is attached separately.

I hope that you might find a good strategy for an appeal.

As I mentioned, I traveled to and from Macau daily for work and had proper Macau work permits (Blue Cards) twice but maintained my residence in Hong Kong.

I have many more supporting documents that prove my only residence during the eight year period I was in Hong Kong but was limited by the amount of supporting documentation upload slots (14 total I believe) available on the HKID website.

I have not contacted Mr. XXXX at HKID to confer, pose questions or ask for the appeal process pending some expert advice and consultation from someone like you.

I assume that there is a time period during which I must act if I wish to appeal.

 Thank you for your time and consideration.

OPINION

Essentially, when you ceased holding an employment visa in Hong Kong to take up employment in Macau, you inadvertently abandoned your continuity of residence here notwithstanding the fact that you maintained your home in Hong Kong at all times.

Time spent on visitor status in Hong Kong within the 7 years will only count towards permanent residency if it was the only status available to you as an application for a new residence visa or an extension to your current residence visa is being considered by the Hong Kong Immigration Department.

The HKID will allow you a few weeks on visitor status ‘between jobs’ but where you have manifestly ‘moved on’ to another jurisdiction (and Macau is as far away as Manila is for Hong Kong immigration purposes) your place of ordinary residence has moved away from Hong Kong too.

In short, you need back-to-back residence visas all throughout the 7 years immediately prior to submitting your PHKID application, otherwise your application will fail.

You could appeal to the Registration of Persons Tribunal but I don’t believe you’d have much joy.

They would no doubt confirm that the HKID didn’t err in your application and then you’d have to litigate in the High Court to promote the contention that ‘ordinary residence’ in the context of a Right of Abode application, includes time spent in Hong Kong as a Visitor whilst you’re working in Macau holding a residence visa there.

You’d be surprised at how many people misunderstand the 7 year rule, so don’t feel too badly about it.

RESPONSE

Thank you Stephen, for your thorough explanation.

I guess I’ll just have to wait another five years to apply again.

Please feel free to include my scenario on your website to inform others that they must have the work visas in place the entire seven year period.

That one sentence, if it were mentioned on the HKID website, would have stopped me from applying and wasting everyone’s time.

Thank you again.

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