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Short period of time away from Hong Kong break my continuity of residence?

Sometimes, continuity of ordinary residence can inadvertently be broken due to factors outside of your control…

QUESTION

I recently graduated from a Hong Kong university after 2 years of permanent study.

Due to circumstances I had to return to my home country for a few months, however I am due to return to Hong Kong next month to take up employment and apply for a Non-Local Graduate Visa.

Will my absence from Hong Kong be viewed in the long term by the Immigration Department as a break in continuous residence for my right of abode application subsequently? 

ANSWER

The test for the Right of Abode in Hong Kong is that you need to show that you’ve been continuously and ordinarily resident in Hong Kong for a period of not less than seven years, and that any absences from Hong Kong in that time need to 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.

So to get to the heart of your question, there are a number of issues that need to be factored into the mix; the first is the time away from Hong Kong. If it has been more than a few months, then arguably you’re going to have to have a really good explanation as to why you have spent that time away from Hong Kong, and more importantly, as part of that explanation, be able to demonstrate that you still had continuing intent to remain settled in Hong Kong throughout that time, and therefore, an analysis of what you had left behind to return back to will definitely fall into the mix. And because there’s not a great deal of facts available to me on the question, it’s difficult for me to particularly drill down on how your circumstances might be perceived by the Immigration Department at the point of view making your application progressing your claim for unbroken continuity of ordinary residence.

Having said that, you also need to possess a residence visa in Hong Kong throughout all of that time. So if you have finished on your student visa and have not yet moved into the realms of the privileges under the Immigration Arrangements for Non-local Graduates, as a fresh graduate, then effectively, as I read your facts it seems that when you come back to Hong Kong, you’re coming back as a visitor.

So you’ve effectively relinquished a residence visa you’ve exited Hong Kong. You may or may not have left behind proof of your intent to remain settled here; and, for all practical purposes, you’ve given up your residence visa, now returned to Hong Kong as a visitor again.

And now you’re going to be making an application to adjust your status from visitor through to an employment visa predicated on the immigration arrangement for non-local graduates. Again, because you’ve had a break in your formal sort of back to back residence. That is, you haven’t gone directly from a student visa into a visa issue to you under the immigration arrangement for non-local graduates.

There is another question mark there as to the state of your mind, at the point of view making your exit from Hong Kong to attend to matters that you needed to take care of back in your home country. So, I mean, all things considered, usually if the break in back to back residence visas as a result, due to what I’ve called the state of administrative flux, then normally the immigration department don’t hold that against you and it tends not to break your continuity of or in a residence, and on the ROP 145 form, which is the application form for the right of abode that you will be completing subsequently, there is a section that you complete to indicate any absences from Hong Kong that have been more than six months. You offered an opportunity to explain what the purpose or what the reason underlying that absence from Hong Kong was all about.

If it’s less than six months, you don’t have to expressly state what that the reasons were for your time away from Hong Kong. But that notwithstanding, there is still an assessment of that time away from Hong Kong by the Immigration department to ensure that you have maintained your intention as regards your settlement throughout all of that time.

So for all practical purposes, then, you’ve got a little bit of a job of work ahead of you going forward, and in the final analysis, it will all depend on what the immigration department make of your explanations at the time that you make your application and what evidence you’ve got to show that even though you did temporarily depart it was your intention to depart temporarily.

And that the subsequent pattern of your behaviour and what happened immediately in the wake of your return to Hong Kong demonstrated that you had good reason for not being here during that time. And as soon as the circumstances overseas terminated such that you could get back to Hong Kong to continue your settlement, then you may be able to carry the day with the immigration department, but not clear cut, it will all depend on the exact circumstances of your situation.

Okay, I hope this helps.

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