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This question comes up quite often so I’m grateful to this questioner for asking it. The answer is straight forward enough, but in my PodCast below, I set out why the reason it is as it is – and why trying to start your Right of Abode application earlier is essentially an exercise in futulity!

QUESTION

“Hi there – just a quick question.

I know that you need to have lived in Hong Kong for a full 7 years before you can become a PR but actually, when does the 7 years officially begin? The reason I ask is that I lived in Hong Kong for 11 months as a visitor before my first employment visa was granted to me but in all of that time I was properly living here, renting a flat, bank account, my own bills etc. so I just need to know when it makes sense for me to apply for my PR.

Thanks for your help and excellent website!”

ANSWER

The answer to this question is relatively straightforward. Effectively, your continuous ordinary residence in Hong Kong for the purposes of a Right of Abode application commences on the date that you arrived in Hong Kong for the first time and activated your first residence visa. It doesn’t start counting any time prior to that, for example, on the day that your visa label was issued to you.

It doesn’t start counting on the date that your application was submitted. And it doesn’t count, when you first arrive, possibly as a visitor prior to making your application for residence visa subsequently. So the answer to this question means that the months that you spent as a visitor will not count.

So you need to start your application on the basis that seven years commenced once your first employment visa was activated. Now, actually, this is really a matter or a question of current Immigration Department practice because the Basic Law doesn’t actually spell out when residence commences. The basic law refers to the concept of settlement that you need to become settled in Hong Kong for the seven years.

And there is an argument that suggests that you can actually be settled prior to getting your first residence visa. But the way the Immigration Department practice this is, they take the view that just through the passage of time, eventually you will be able to arrive at the seven years complete, continuous residence, from the date that your residence visa was first activated in any time prior to that really should be discounted because of the saving.

Just the passage of time will allow you to secure the full seven years. So any applications that are argued on the strength of a settlement commencing at any time prior to the activation of your first residence visa, those arguments fall on stony ground or deaf ears at the immigration line because they know that in order for you to actually promulgate that argument, if they say no, you’re going to have to litigate, you’re going to have to go to court, and the expense of going to court and the time that it takes to actually cover this missing ground is such that through the passage of time, the problem goes away.

So the only way that you could possibly argue that your settlement commenced prior to your first residence visa being activated is to litigate. And nobody does that. So it tends not to be a practical problem for the British department, nor indeed for those people that are really settled here.

And, in due course, the seven full years will have accrued under an activated residence visit, and then you’ll go on to get your current residency accordingly.

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PODCAST ANSWER

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