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What happens to a Hong Kong resident dependant visa holder sponsored by a parent holding a visa issued under the Admission of Mainland Talents & Professionals Scheme where the parent is unlikely to remain in Hong Kong – but the dependant wants to stay?

QUESTION

I am currently holding a dependent visa of which my father is the sponsor, under the Admission Scheme for Mainland Talents and Professionals.

 The situation is that:

(A). There is a chance that my father, the sponsor, would not be able to extend his stay since he has to spend more time working in mainland than in Hong Kong (i.e., his visa would expire in 2014 if not successfully extended, which technically means my dependent visa would expire at the same time) (B). However, I myself has an offer to start working at a multinational company this September.

 Given the prime goal of attaining permanent residency for me, I need your expertise and suggestions on the following questions:

1. If there’s a large chance that my father will not be able to claim permanent residency two years from now (when 7 years has been reached since first got HKID), shall I switch to employment visa as soon as I am eligible to do so?

2. I have held dependent visa for 5 years now. After year 7, can I apply for permanent residency independently (given that we have successfully extended our sponsor/dependent visas till then?) Or does my outcome depends on my father’s application/status?

3. If I do switch from a dependent visa to an employment visa, say in September of this year. Will the accumulation of residency start over from the new visa? i.e., Say I work in Hong Kong under employment visa for 2 more years. Does that give me a total of 7 years, or only 2, for the application for permanent residency? 

4. Aside, I understand that 7 years is only a precondition for application of PR. So if I do get 7 years from the scenario above (5 dependent + 2 employment), yet I didn’t stay much in Hong Kong in the 5 years as a dependent. Would that significantly impact my chance of claiming PR?

Thank you very much for answering this long list of questions.  I really appreciate your time and help.

ANSWER

A question that’s got quite a few components to it, but the answer is relatively straightforward, so I don’t think it’s going to take too long to be able to clear things up for you in relation to your ability to remain in Hong Kong on a dependent visa.

If your father’s admission of Mainland Talents and Professional Scheme visa isn’t available for extension, then correct, you’re going to have to leave Hong Kong unless you’ve been able to adjust your status into another type of residence visa; and from the facts that you’ve saved, it would appear that you have potentially a sponsor, ideally a large multinational who will be prepared to sponsor you for employment visa permissions.

In order for you to get those permissions, you will definitely have to pass the approvability test for an employment visa, which is that you’re going to have to possess special skills, knowledge and experience of value to and not readily available in Hong Kong, and also the multinational is going to have to conceptually show that they’re justified in engaging your services rather than those of a local person.

But the reality is that the Immigration Department very rarely second guess the hiring decisions of large multinationals. If your sponsor in this instance is in fact large multinational, it’s a fair assumption that you will be able to successfully adjust your immigration permissions through to an employment visa from a dependent visa if it does transpire that your father’s not in a position to continue to sponsor your visa accordingly.

Now, insofar as part two of your question – yes, once you have had seven years continuous ordinary residence in Hong Kong, and as long as you’ve had back to back residence visas in all of that time, which means time spent as a dependent and indeed time subsequently spent as an employment visa holder cumulatively, those two visa types over the course of the seven years will qualify you for the purposes of a Right Of Abode application; and there is in fact no direct association in relation to your own application for the Right of Abode with that of your father’s, assuming of course, that you’re over 18 when you make your application for permanent residency subsequently, I think that effectively gives you the answer in relation to question three, so I don’t need to discuss that any further.

As regards question four, at the point of making the application for the Right of Abode, you’re going to have to demonstrate to the department that any time that you spent spent away from Hong Kong in the seven years was of a merely temporary nature only as evidenced by what you left behind to return back to at the end of each temporary stay abroad.

Now, assuming that you have maintained your vestiges of your life in Hong Kong throughout all of those seven years, and even if you have spent a bit of time up in China for the purposes of your sort of the normal pattern of your ordinary life, then that type of time spent in China should not derogate from your ability to claim ordinary residence all throughout the time that you suggesting to the department that you have been resident in Hong Kong.

If for all practical purposes, though, you fundamentally upped sticks went back to China and spent maybe a couple of years cumulatively with only one or two months in that time back in Hong Kong, then it’s difficult to argue with the department that you have remained settled in Hong Kong throughout all of this time, because it could be deemed that Hong Kong was really just a jurisdiction of convenience and that your real time from a settlement perspective, was spent up in China, not in Hong Kong. So it will all depend on the nature of the time that you spent in China and the length of that time and what you were doing there. But fundamentally, if you’ve, for all practical purposes, maintain a full life and education and a professional career in Hong Kong, then the Immigration Department would likely conclude that any time spent out of Hong Kong will have been of a merely temporary nature, and so your continuity of ordinary residence should have been maintained accordingly.

I think that really covers all those bases for you, so I hope you find this helpful.

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