If I Am an Overseas Chinese and My Mother Holds a HKSAR Passport and a PHKID Card Do I Have the Right of Abode in Hong Kong?
Posted in Long Stay & PR, The Hong Kong Visa Geeza, Your Question Answered /
The question of permanent residency in Hong Kong is one of the most complex areas of immigration practice and this question is helpful in that it speaks to the situation of ethnically Chinese foreign nationals with Hong Kong parentage.
QUESTION
“I am a mother of three children. I hold a Permanent Hong Kong Identity card as well as a HKSAR passport. My husband is Malaysian and I have lived there for the last 22 years. My eldest child was born in Hong Kong before we moved to Malaysia full time. My two other children (a girl and a boy) were born in Malaysia. A few years ago I was able to secure a Permanent Hong Kong Identity Card for my eldest child and now I would like to do the same for my other 2 children. Can you tell me if they will qualify or not? Thank you!”
Thanks for your question. Can you please provide me with some further information as below:
How old are your 2 other children now?
“Daughter: 19 years old this year”
“Son: 11 years old this year”
What nationality were you when your children were born?
“Malaysia and Hong Kong”
What nationality are you now?
“Malaysia and Hong Kong”
What nationality are your children now?
“Malaysia”
Where do your children live now?
“Malaysia”
Have your children ever lived in Hong Kong before? If so, when and for how long?
“No”
Did they do any schooling here?
“No”
What year did you move back to Hong Kong from Malaysia?
“I am currently living in Malaysia, I’m just here for holiday”
What nationality is your husband?
“Malaysian”
Where does your husband live now?
“Malaysia”
ANSWER
In order to secure permanent Hong Kong identity cards, we must establish that your daughter and son are ‘permanent residents’ of Hong Kong.
A permanent resident of the HKSAR is defined under paragraph 2 of Schedule 1 to the Immigration Ordinance. Here are the relevant sections:
2 … A person who is within one of the following categories is a permanent resident of the HKSAR….
(a) A Chinese citizen born in Hong Kong.
(b) A Chinese citizen who has ordinary resided in Hong Kong for a continuous period of not less than 7 years.
(c) A person of Chinese nationality born outside of Hong Kong to a parent who, at the time of birth of that person, was a Chinese citizen falling within Category (a) or (b).
(d) …
“Chinese citizen” is defined under paragraph 1(1) of the Schedule 1 to the Immigration Ordinance.
“Chinese citizen” means a person of Chinese nationality under the Nationality Law of the PRC as implemented in the HKSAR pursuant to Article 18 of and Annex III to the Basic Law and interpreted in accordance with the Explanations of Some Question by the Standing Committee of the National People’s Congress Cioncerning the Implementation of the Nationality Law of the PRC (‘CNL’) in the HKSAR adopted at the 19th meeting of the Standing Committee of the National People’s Congress at the 8th National People’s Congress on 15 May, 1996.
Article 5 of the CNL stipulates that:
“Any person born abroad who parents are Chinese nationals or one of whose parent is a Chinese national shall have Chinese nationality. But a person who parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality.”
So, the crucial point in considering whether your daughter and son are permanent residents of Hong Kong for the purposes of getting Permanent Identity Cards is whether they were Chinese nationals at the time of their birth. Whether they are Chinese nationals or not therefore hinges on if you, their mother (who is a Chinese national), were settled abroad at the time of their birth.
From the information you have provided to me it appears that:
1 – You, their mother, are a Chinese national.
2 – At the time of the birth of your daughter and son you were settled abroad in Malaysia.
3 – Consequently, by operation of Chinese nationality law, your daughter and son are not Chinese nationals.
4 – Indeed, they acquired Malaysian nationality at the time of their birth.
5 – Consequently, as your children are not Chinese nationals they cannot be deemed permanent residents of Hong Kong by virtue of their relationship to you.
6 – Meaning, their application for Permanent Hong Kong Identity Cards is unlikely to be successful.
However, you will never know if you do not try.
Related Posts for Further Information
Hong Kong right of abode application – consider your strategy and plan early
Hong Kong right of abode application – arguing away missing periods of residence
Permanent residency approval with a 2 year absence from Hong Kong!
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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.
