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Your Questions Answered

Hong Kong Unconditional Stay Status vs. the Right of Abode for CIES Visa Holders

September 2nd, 2012

Posted in Investment Visas, Long Stay & PR, The Hong Kong Visa Geeza, Your Question Answered /


 

The Capital Investment Entrant Scheme is a really neat visa for those well-off enough to be able to afford it. Permanent residency is available at the end of 7 years continuous ordinary residence, but it is not sufficient just to hold the visa – you have to have lived here too…

QUESTION

“Hi Stephen,

I would like to clarify something please. In your article on the Right of Abode you said, “…unless it is obvious, that you have indeed spent a great deal of time continuously outside of Hong Kong during the requisite 7 years.”

Does this apply for Capial Investment Entrant Scheme visa holders? Because we we were absent for quite a significant amount of time (according to the immigration office), but only because we are capital investors, so we are still running businesses outside of HK.

Is there any chance of arguing this? Once again, thank you for your time.”

ANSWER

When the Capital Investment Entrant Scheme (“CIES”) was first implemented it introduced, for the very first time, a category of ‘potential’ resident that had, until that time, not existed in the realm of immigration statuses (stati?) in the HKSAR.

Namely, foreign nationals could secure residency in Hong Kong ‘merely’ through the locking in of a set amount of capital into Hong Kong ‘assets’ as defined by Immigration Regulations from time to time; presently HKD10 million, previously HKD6.5 million.

Under the CIES programme the HKID allow holders of this visa type, and their dependant families, the privilege of residence in the HKSAR all throughout the time they have locked their assets into Hong Kong, ostensibly to benefit Hong Kong through that value seemingly flushing around in the economy here.

Whilst the CIES visa provides the opportunity for the holder to take up residence, there is no compulsion for them to do so. There is, unlike other jurisdictions, no ‘use-it-or-lose-it’ quality to the CIES visa.

Consequently, the question was then begged as to what would happen to CIES visa holders at the end of seven years when, essentially, it becomes possible to apply for permanent residency and thereby be freed from the asset lock in conditions which had prevailed previously?

For those CIES visa holders who have indeed taken up full time residency in the HKSAR throughout the prior 7 years and who can demonstrate that they have taken concrete steps towards making Hong Kong their only place of permanent residence (the “approvability test”) the process of converting to PR is relatively straight forward.

But, where the CIES visa holder manifestly does NOT qualify for the Right of Abode, the HKID inadvertently created a policy lacuna in that, such people should also be able to have access to their locked up capital once again and so should be granted an immigration status which rewarded them for committing their capital whilst not punishing them for not qualifying for the Right of Abode.

For those such CIES visa holders, seemingly yourselves included, you are entitled, automatically, to Unconditional Stay (“UCS”) 7 years after your first CIES period of stay was granted.

The difference between the UCS and the Right of Abode is quite straight forward.

UCS is an administrative convenience afforded by the Director of Immigration, whilst the Right of Abode is a statutory right, enshrined in the Basic Law.

I have laboured the answer to your question in this way to illustrate to you how the HKID will be viewing your circumstances. Namely, the nature of the CIES visa anticipates people in your situation and sets out a ‘post-CIES’ immigration status where, by necessity or otherwise, you were never in a position to fully reside in Hong Kong nor put in place the vestiges of a life where you can properly declare that you’ve taken Hong Kong as your only place of permanent residence.

The bottom line is that possession of a residence visa alone, supported by frequent visits to Hong Kong, is not sufficient to qualify for the Right of Abode.

So the argument you are suggesting will not hold any water I’m afraid.

The best you can expect to get is Unconditional Stay and, even then, you need to ensure that you all enter Hong Kong on at least one occasion each 12 months to maintain it – otherwise your 7 years of asset commitment to Hong Kong will all have been for naught.

More Stuff to Help You Along

The role of Unconditional Stay in Hong Kong today

Can I swap from Hong Kong dependant visa to a Capital Investment Entrant Scheme visa?

Hong Kong Right of Abode application – arguing away missing periods of residence

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The Hong Kong Visa Geeza (a.k.a Stephen Barnes) is a co-founder of the Hong Kong Visa Centre and author of the Hong Kong Visa Handbook. A law graduate of the London School of Economics, Stephen has been practicing Hong Kong immigration since 1993 and is widely acknowledged as the leading authority on business immigration matters here for the last 24 years.

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