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Although this case study is based on a situation I was asked to provide guidance to many years ago, its content is still relevant today.

Our client was a French national with a wife and 5 year old daughter – all of them, French citizens.

He had first arrived in Hong Kong in 2004 as a student to undertake an MBA programme at the University of Hong Kong.

Upon graduation in 2006, he joined a European investment bank where he worked continuously until 2010 when he was made redundant as part of the banking challenges associated with the GFC.

At the time he instructed us, he had an employment visa sponsored by his ex-employing investment bank with a 2 year period of stay endorsed inside his passport, taking him up just short of the complete 7 year time frame for the purposes of an application for the Right of Abode.

In 2010, with the chances of him gaining further employment in the investment banking game unlikely in the near term, our client decided to start a French wine importing business – but did not apply for an adjustment in his immigration status to allow him to be able to do this. He really needed an investment visa but had never bothered to get one.

As the period of stay availed by the investment bank expired 6 weeks before he would have been continuously resident for the 7 years needed for a Right of Abode application, he decided that he would take him family out of Hong Kong at the time his employment visa expired and bring them all back in as visitors, gaining a 90 day period of stay when they entered, waited six weeks, then submitted an application for the Right of Abode.

This was in 2011, 2 weeks before he asked for our help.

At the time of his application, he didn’t realise that you can’t apply for the Right of Abode if you have a visitor visa.

You need to be ‘resident’ at the time you apply. Instead he and his family were ‘visiting’.

The Hong Kong Immigration Department knocked back his application for permanent residency on this ground and so he found his way to us.

The key issues in this application were:

1 – the fact of his visitor visa status at the time he applied for the Right of Abode.

2 – the 11 months he had been working his French wine import business, unapproved by the Hong Kong Immigration authorities.

3 – as a prior student from HKU he could take advantage as a ‘returning graduate‘ and be afforded ‘positive consideration’ for any application that he might make in order to take up a new job in Hong Kong (for which he’d need an offer of employment from a suitably qualified sponsor).

Coincidentally, just after our client approached us for advice, an ex-colleague of his from the investment bank where he had worked for four years previously, asked him to come and consult on an energy project in the Philippines.

This ex-colleague had, three years prior, provided consulting services through his own, newly established one-man company and had turned over HKD10 million in consulting fees in the first 18 months. However, the project had come to a temporary halt, as these things often do, as certain government approvals processes played themselves out.

The project has been in a temporary hiatus but had, just recently, been reactivated in light of the Philippines government providing whatever consents had been necessary for it to progress to the next phase.

Consequently, and somewhat out of the blue, our client received an offer of employment from his ex-colleague for him to assist him in the next phase of the energy project.

This was good news on the one hand, but on the other, the employing business was still very much a ‘brass plaque’ consulting concern which had been effectively dormant for the last 18 months.

On the plus side, it had a strong balance sheet and also had a receipt from the Hong Kong Inland Revenue for more than HKD1 million it had paid in profits tax the year before. It also had a formal notification from its sole client that the energy project was now recommencing and thus was manifestly ready to re-engage in providing services once more.

We advised our client that this could be a heaven sent opportunity for us to secure an employment visa for him (with dependent visas for his wife and daughter) relying on the relaxed application consideration criteria which the Hong Kong Immigration Department afford to non local graduates of Hong Kong Universities.

We did, on the other hand, counsel that as the sponsoring employer was pretty much still a shell of an operation, there would be some tussling with the Immigration Department to persuade them of its bona fides as a quality employment visa sponsor.

As expected, we locked horns with the Department about the quality of the sponsor and had several exchanges with them each time providing them with more information, proof of the good prospects for the business and the critical role our client was going to be playing in its operations.

Finally, we suggested to the HKID that they approve our client’s employment visa subject to Business Review at the end of 12 months, a not unusual proposition, but suitable in the circumstances. The Hong Kong Immigration Department agreed and our client and his family’s applications were duly approved subject to this condition.

As the strategy all along had been to provide our client with a residence visa for the purposes of his Right of Abode application, the fact of this Business Review was ultimately unimportant because it would only come into play if our client applied for an extension to his new employment visa 12 months down the road.

In fact, two months after this, their Right of Abode applications were approved and so Business Review was never an issue. The really good news is that this client is now providing consulting services to the energy project AND running his French wine importing business quite lawfully as a permanent resident.

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