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So, if you plan to leave your job a few weeks before your 7 year anniversary how will this impact on your application for the Right of Abode in Hong Kong?

QUESTION

I‘m Australian, and have an employment visa in Hong Kong currently, but I wish to resign from my present job.

Having said that, I might not be able to apply for a new employment here so soon, but I wish to get right of abode in HK.

My 7th year anniversary is in July 2015.

However, if I resign now, my employment will cease in April; my resident visa ends 2016 Jul.

A few queries:

1. Will my employment visa expire when my employment ends and will I still be able to stay in HK after April?
2. If I stay in HK unemployed till July, can I still apply my right of abode then?
3. If I leave HK in April, and return to HK in July, can I still apply for the right of abode in Hong Kong then?

Many thanks!

ANSWER

This question seems to raise its head very frequently, and I’m pleased to be able to address it one more time in the context of these circumstances. So, just to recap, when you get an employment visa, you get two privileges. You get the privilege to work and you get the privilege to reside.

The privilege to work is limited to the sponsoring employer. When you stop working for your existing employer, your privilege to work ceases, but your privilege to reside continues until your current limited stay expires, in this instance sometime in 2016, or until the Immigration Department take it away from you.

Well, the Immigration Department very rarely indeed take this status away from you. So, if it’s your intention to cease working for your existing employer in April,  but you’re then going to have a continuing limit of stay manifested in your passport that allows you to reside through to July 2016, some 15, 16, 17 months later.

And clearly you’re going to be in the driving seat to maintain your residence in Hong Kong for the purposes of your Right of Abode application, where the test for approval is, you need to show that you’ve been continuously and ordinarily resident in Hong Kong for a period of not less than seven years, where any absences from Hong Kong in that time have been of a merely temporary nature, as evidenced by what you leave behind to return back to at the end of each temporary stay abroad.

Moreover, you need to have had back to back residence visas in Hong Kong in order to qualify and you need to be clearly settled in Hong Kong at the point of view making your application whilst you’re also making a declaration. To the extent that you’ve taken Hong Kong as your only place of permanent residence, so insofar as you leaving your employer in April goes, and then qualifying for seven years anniversary of continuous ordinary residence come July of this year, then you’re certainly in the driving seat to progress with that application, notwithstanding the fact that you don’t have an employment in play at the time that you do make your application at the seven year anniversary mark, bearing in mind that you need to show to the Immigration Department that you remain settled in Hong Kong, you need to be a tad circumspect about quitting in April and then going off on a jolly around the world doing all kinds of interesting things and thinking, well, then I’ll just drop back into Hong Kong around about the seven year mark, push forward my application for the Right of Abode.

As I said, I suggest that you be a tad circumspect about this, because your rationale for the residence that you’ve got is employment. Now, if you cease working for your employer prior to you having converted through to permanent residency, the onus is on you to show to the Immigration Department that during the weeks and months in the wake of you having left your existing employer, you’ve attempted to bring about the circumstances such as you can, to re invoke the essential rationale for you having been granted that visa in the first place, which in your instance, clearly is an employment visa.

So, yeah, by all means, you can go off and take some time away. It’s fairly reasonable. You stop working and you want to go for sort of blow out the cobwebs, that’s perfectly okay. But it’s really important to understand that you’ve got to leave behind in Hong Kong all the vestiges of your ordinary life such that you can return back to it and pick up from where you left off once you have been able to clear a pathway for your future endeavours here.

So, yeah, just to answer your question specifically, one by one, will your employment visa expire when your employment visa ends, and will you be able to stay in Hong Kong after April? Yes, clearly, as I’ve just explained, you will be able to do that; and if you’re in Hong Kong in July and you make your application for the Right of Abode, but you don’t have an employment at that point, yes, you can make your application, but stand ready for the Immigration Department to possibly come back and ask you some questions about what you try to do to bring about the circumstances for continuing employment in Hong Kong so they can be satisfied that you haven’t in any way abandoned your settlement with your determination to leave your work.

And then finally, if you leave Hong Kong in April and return in July, can you still apply for the Right of Abode in Hong Kong? Yes, you can. But again, the onus is on you to ensure that if the Immigration Department need evidence as to the state of your mind when you exited Hong Kong in April, that it was your intention to depart temporarily only and not leave on a permanent basis.

And that gets to the heart of settlement. So I would advise that if you’re going to go off, then leave behind in Hong Kong all the vestiges of your ordinary life, not least your accommodation arrangements and a mobile phone and everything else that goes with that. So that once you’ve blown off the cobwebs and you do return to Hong Kong, you’re in a position to make your application for the Right of Abode without compromising the notional idea of settlement at the time that you make that application, given that you won’t be in gainful employment at that moment in time.

Okay. I hope you found that useful.

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