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First Published October 9, 2012 – Still Relevant

Whilst the implementation of Hong Kong immigration policy is essentially very flexible, as an employment visa holder, until you have gone on to receive the right of abode (RoA) or unconditional stay after seven years continuous ordinary residence, your permissions to remain in Hong Kong are governed very tightly. I am grateful to this questioner for providing an opportunity to have a discussion about ‘strategic immigration status management’ through to the point where it is possible to make an application for permanent residency in the HKSAR.

QUESTION

“Thanks for being so helpful, your posts are very useful. I have 2 questions:

 1) If my visa is expiring in 31 April 2013 and the company extends it 15 March 2013 which gets approved (before the original visas expiry date, i.e. approval on 30 March 2013) to extend until April 2015 – what happens if I quit before the original visa’s expiry date (but my extension has already been approved)? Am I allowed to stay in HK until 2015?

 2) If my visa is expiring 31 April 2015, and I decide to quit, can I apply for university courses or a degree course on the employment visa that I am on or do I need to re-apply for a student visa (end date of the course does not surpass the visa expiration date)?

Does this educational period count towards Right of Abode?”

ANSWER

In this question, we’re being asked whether it’s possible to extend your current employment visa, quit your job, then go on to take up studies full time without actually dealing with the question of immigration status. In wake of the change in the rationale for Hong Kong, it’s not commonly appreciated that when you get an employment visa, you get two privileges: you get the privilege to do the particular job that’s underpinning your employment visa in the first place, and you also get the privilege to reside when you stop working for that particular employer that is the party that’s sponsoring your employment visa. Effectively, your privileges to work cease at that point in time, but your privilege to reside continues until your current limit of stay expires or unless the Immigration Department expressly revoke your existing limit of stay and give you a shorter limit of stay, whereupon you’re expected to leave.

Thus, if you have had your privileges to work terminated as a result of leaving your employment, then effectively the question is what is permitted activity other than residing in Hong Kong whilst you’re in possession of that employment visa?  Well, it’s not permitted activity to take up any employment and it’s not permitted activity for you joining a business first without getting the consent of the Immigration Department.

When you possess an employment visa, it is permitted activity joining a part time course of study? It’s not permitted activity whilst you’re in possession of an employment visa to take up a full time course of study. So if your rationale for remaining in Hong Kong in the wake of leaving your job is to take up a full time course of study, you’re going to have to adjust your immigration status from employment through to student, and the limited stay that you’ll get on each occasion will be directly related to your continuing enrolment and your continuing participation in your course of studies. So then, moving on to the second part of the question, effectively, any time that you spend in Hong Kong as a resident will count towards your continuous ordinary residence for the purposes of an eventual Right of Abode approval.

So the test is continuous ordinary residence showing that you have become settled in Hong Kong throughout this time and at the point of making your application, you’ve taken concrete steps to having taken Hong Kong as your only place of permanent residence. Therefore, any time that you spend as a student in Hong Kong, as long as it’s part of a continuous period of ordinary residence that amounts to no less than seven years. Having become settled and taken Hong Kong as your only place of permanent residence, then that time spent as a student will definitely count towards the seven years for the purposes of a permanent residency approval.

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