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First Published October 29, 2014 – Still Relevant

Does being married to a Hong Kong permanent resident whilst living in China impact on continuity of ordinary residence for the purposes of a right of abode application subsequently?

QUESTION

Hi,

Your website is incredibly helpful! However, my situation doesn’t seem to have an answer yet, so here goes!

I’m a UK national and have been working in Hong Kong on a work visa since October 2009.

I have recently resigned from my position but my work visa is valid until February of 2015.

I am going to get married to a HK permanent resident (she was born in Hong Kong) before my work visa expires and apply for a dependent visa for Hong Kong.

My question is, will my 7 years continue through this dependent visa and in 2 years time will I be eligible to apply for my PR?

Separately, there is a good chance my future employer will relocate me to Beijing on a China work visa, but my fiancé and I will frequent Hong Kong since her family is here, and ultimately we plan to permanently return to Hong Kong within the next few years.

Will this disrupt my 7 years?

Thank you in advance for your advice!

ANSWER

At first blush, this question appears to be quite complicated, but in actual fact it’s a very simple scenario to address for immigration purposes. The first question as regards changing your status from sponsored employment through to dependent, and will that have a negative impact on your deemed continuous ordinary residence for the purposes of your eventual Right of Abode application?

A short answer is no, because as long as you’ve had a residence visa or throughout the requisite seven years, irrespective of the type, then that counts towards the immigration sailors as needed to secure the Ride of Abode. Subsequently, the bigger question really is this issue about you leaving Hong Kong to go and work in China?

If you’re going to work in China, surely you’d expect to have a work visa there to be able to do that. But you need to be careful that you don’t inadvertently abandon your continuity of ordinary residence in Hong Kong. Ostensibly, what you need to do while you’re in China is to ensure that any future deployment to China is couched as a second from your primary Hong Kong employment, which is maintained in Hong Kong throughout all that time that you’re in China; and that the temporary second and the language that surrounds that project should clearly state that you will go there, you will work there, but you’re being seconded ex Hong Kong on a temporary basis, and that it’s the full intention of you and your employer to return back to Hong Kong to recommence your formal employment in Hong Kong at the end of that temporary secondment there; if you couch it in those terms, then the reality is that the Immigration Department will allow you to have continuity of ordinary residence because it is in fact just a temporary absence from Hong Kong whilst you’re in China, even though it might be of a long or possibly short duration.

So the test for approval is continuous ordinary residence for a period of not less than seven years, where any absences from Hong Kong in that time 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 given that you will be married to a Hong Kong permanent resident, a local girl, and your assignment in China is going to be promulgated, your employment in Hong Kong into China on a temporary basis, even if it does transpire to be a few years that you’re there and you come back to Hong Kong frequently and when you do return to Hong Kong, you will recommence your Hong Kong employment once all over again with your employer that sent you to China in the first place.  If you can couch it in those terms, you should be fine. Okay, I hope you found this useful.

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