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QUESTION

I was born in China and have HKID with “***”.
I got US green card around 1990.
I married a US citizen (Chinese born in China) in 1991.

My older son was born in 1996 in the US.
I became a US citizen in 1997.
My younger children were born in the US in 2002 & 2004.
I changed my smart PHKID and HKSAR passport in 2010.

We all now live in the US.
Will my children qualify for PHKID?
Will my wife qualify for PHKID?
Is it legal to have both HKSAR and US passport?

ANSWER

This truly is a complex area of Hong Kong immigration law.

In order to secure permanent Hong Kong identity cards (PHKIDs), you must establish that your children and wife 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 Concerning the Implementation of the Nationality Law of the PRC (‘CNL’) in the HKSAR adopted at the 19^th meeting of the Standing Committee of the National People’s Congress at the 8^th 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 initial test in considering whether your children are permanent residents of Hong Kong for the purposes of getting PHKIDs 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 father (who are a Chinese national), were settled abroad at the time of their birth.

If they are deemed Chinese nationals at the time of their birth, the second test of ‘acquiring foreign nationality at birth’ comes into play.

From the information you have provided to me it appears that:

1 – You, their father, are a Chinese national.

2 – At the time of the birth of your children you were settled abroad in the USA.

3 – Consequently, by operation of Chinese nationality law, your children are not Chinese nationals.

4 – Indeed, they acquired US 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 PHKIDs ‘by descent’ is unlikely to be successful.

7 – Your wife is a Chinese national – but was not born in Hong Kong.

8 – For her to become a permanent resident of the HKSAR she will have to:

(a)   Secure a dependant visa sponsored by you and live continuously and ordinarily in Hong Kong for not less than 7 years and then claim the Right of Abode under section 2(b) above.

(b)  However, as a US citizen there are complex issues in relation to her choosing her US citizenship over Chinese nationality for the purposes of her long term residency in Hong Kong (requiring choice of preferred nationality).

(c)   If she becomes a permanent resident of Hong Kong and elects to favour her Chinese nationality she will be able to go on to secure a HKSAR passport.

(d)  If she elects to favour her US citizenship, she will not.

(e)  Ostensibly, she would have to relinquish her US citizenship to go on to acquire a HKSAR passport as it is not lawful under Chinese nationality law to be a dual citizen.

9 – For your children to secure the PHKIDs, they will have to adopt the same process as your wife, too (but acquiring the Right of Abode by virtue of being qualifying long-stay foreign nationals).

10 – However as they were not born on Chinese soil and you, their father, were settled abroad at the time of their birth (and they acquired US citizenship at the time of their birth) they will not be able to acquire Chinese nationality ‘by descent’.

11 - Instead, they will have to naturalize as Chinese citizens under Chinese nationality law, giving up their US citizenship in the process, in order to acquire HKSAR passports.

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