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Hong Kong being a small, dynamic city which punches above its weight in the region, this situation happens all the time. So what IS the impact on your subsequent eligibility for the Right of Abode if your employer wants to shift you off-shore temporarily to manage a project?

QUESTION

I have been working in Hong Kong now for 3 years on an employment visa and my company wants to send me temporarily for 6-12 months to Malaysia to manage a project.  I will be on secondment as an employee of the Hong Kong branch still and will return to Hong Kong when the project is done so am wondering how this will affect my continuous residency? 

Does this mean that I will have to start the 7 years again when I return to Hong Kong?

ANSWER

This situation happens quite a lot in Hong Kong.

A, because Hong Kong is a small geography physically and, B, because we do punch above our weight regionally, naturally enough foreign nationals who work for Hong Kong companies do from time to time find themselves on long term projects working outside of Hong Kong in pursuit of their Hong Kong employer’s business interests overseas.

So, the Immigration Department see this quite often and it’s not typically a major problem as long as everything is lined up properly to allow the eventual test for a right of abode application to be satisfied at that time. So, the test for the right of abode is that the person that has to have been continuously an ordinarily resident in Hong Kong for a period of not less than seven years and there any absences from Hong Kong in that time need to have been of a merely temporary nature and there must be manifest evidence to show that the applicant is settled in Hong Kong at the time that the application is made.

So, the issue here is really a question of settlement. So, firstly once you are sent overseas, as long as you leave behind in Hong Kong the vestiges of your life to return back to, the normal vestige of your life to turn back to then you ordinary residence will be on the face of it maintained.

Secondly, if you are going to be overseas for your employer’s interests then your Hong Kong employment contract will continue and your MPF payments and your liabilities in relation to Hong Kong salaries tax ostensibly will continue and you’ll certainly be reporting to the Inland Revenue Department as you should do in relation to your earnings as an employee of a Hong Kong entity.

Thirdly, if your family are not going to be joining you and they’re going to be remaining back in Hong Kong that is excellent evidence that you’ve made the secondment merely on a temporary basis.

Fourthly, naturally enough your employer should be kind of appraised of the potential impact this temporary secondment can have on you and your continuous ordinary residence for the purposes of your eventual right of abode application and so a conversation with them can ensure that all the necessary bits and pieces from a documentation perspective are put in place to show that your secondment is basically mandatory and that it is only temporary and that your employment will continue in Hong Kong throughout all the time that you do spend abroad.

So, for all practical purposes if it is a temporary secondment and you’ve got your docs lined up and you can show that you’ve got all the vestiges of your normal life waiting for you when you come back for all practical purposes your continuous ordinary residence will continue.

If your employment visa is due to expire during the time that you’re overseas then naturally that will have to be extended because it’s important to have had back-to-back residence visas throughout the other qualifying seven years for your rights of abode application in due course.

So, no, you won’t have to start the seven years all over again when you return to Hong Kong so long as you follow those essential precepts to evidencing your continuing intent to remain settled in Hong Kong throughout.

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