By Colin Cohen

Hong Kong, 4 April 2022: The Covid-19 pandemic has seen many non-Chinese citizens returning to Hong Kong from overseas and enduring mandatory hotel quarantine, sometimes for as long as three weeks, solely for the purpose of retaining their permanent residency.

They undertake the trip believing they need to comply with the so-called “three-year rule” – that is, a requirement to land in the city within 36 months of their last visit – in order to keep their PR status. Other citizens, either through choice or circumstance, have not returned within three years and fear they have lost their right to permanent residency. So, what exactly is the position?

What the law says

According to paragraph 7(a) of Schedule 1 to the Immigration Ordinance (Cap. 115), whether a non-Chinese citizen will lose his or her PR status hinges on:

• Whether and since when the person concerned ceased to have ordinarily resided in Hong Kong (“Ordinary Residence Factor”); and
• Whether the person concerned has been absent from Hong Kong for a continuous period of not less than 36 months after ceasing to have ordinarily resided here (“36-month Factor”).

If the citizen meets the requirements of both the Ordinary Residence Factor and the 36-month Factor, they lose their PR status.

Consequences of losing PR status

Pursuant to section 2AAA of the Immigration Ordinance, a person who loses their PR status still has the right to land in Hong Kong. It means they can enter Hong Kong to live, study or work without any restriction. Further, they are not subject to any condition of stay.

However, they no longer enjoy right of abode such that they can be deported from Hong Kong if they are convicted of an offence with imprisonment for not less than two years or if it is deemed “conducive to the public good”. Also, they cannot apply for a permanent identity card and they also lose certain benefits enjoyed by PR citizens such as the right to vote and eligibility to stand for election.

Powers of the Director of Immigration

The Director of Immigration has no power of discretion to extend the 36-month period of absence from Hong Kong or to waive compliance on the grounds of special or unforeseen circumstances.

However, the Director can exercise discretion with regard to the Ordinary Residence Factor. Section 2(6) of the Immigration Ordinance allows the Director to determine whether the person concerned has ceased to be ordinarily resident in Hong Kong or is only temporarily absent by taking into consideration all the circumstances of each case, which may include:

• The reason, duration and frequency of any absence from Hong Kong;
• Whether he/she has habitual residence in Hong Kong;
• Employment by a Hong Kong based company; and
• The whereabouts of the principal members of his/her family (spouse and minor children).

Meaning of ‘ordinarily resident’

According to Article 24(2)(4) of the Basic Law, a person not of Chinese nationality is a Hong Kong permanent resident on the condition that he or she has entered Hong Kong with a valid travel document, has ordinarily resided here for a continuous period of not less than seven years and has taken Hong Kong as their place of permanent residence.

Although the meaning of ordinary resident pertains to PR status, there is no statuary definition of this term. The courts have, in numerous settings, demonstrated that the expression “ordinarily resident” depends on the contexts and purposes of the circumstances concerned.

For instance, in Fateh Muhammad v Commissioner of Registration (2001) 4 HKCFAR 278, the Court of Final Appeal recognised that “the expression ‘ordinarily resident’ is to be given its natural and ordinary meaning”. The court went on to say: “No single judicial pronouncement or combination of such pronouncements in regard to the meaning of the expression ‘ordinarily resident’ can be conclusive for the purposes of every context in which that expression appears.”

‘Settled purpose’

A landmark case frequently cited in residency hearings in Hong Kong is that of Akbarali v. Brent London Borough Council [1983] 2 AC 309 which went all the way to the UK’s House of Lords. The case laid down the general rule on how the courts would approach the expression of “ordinarily resident”, which “refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration”.

Lord Scarman further noted that “settled purpose” could be one or several purposes, specific or general, and these could be for a limited period. Common reasons for stay might include education, business or profession, employment, health, family or merely love of the place. “All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.”

This principle has been adopted widely in different cases in Hong Kong. For example, in a recent bankruptcy hearing in the Court of First Instance, the court held that the respondent, although lacking PR status, was ordinarily resident in Hong Kong. The court considered various factors, including:

• The respondent owned a flat in which he would stay while in town on business;
• He was residing in Hong Kong for a settled purpose;
• He had extensive business ties with Hong Kong lasting 20 years;
• He had personal bank accounts in Hong Kong.

The court noted the respondent might also be ordinarily resident in other place, but this would not negate his ordinary residence in Hong Kong.  

Grounds for appeal

Questioned in the Legislative Council last September about the PR status of citizens amid the pandemic, Secretary for Security Chris Tang confirmed the Immigration Department had room to exercise discretion in respect of the Ordinary Residence Factor. He said authorities would consider an individual’s reasons for absence.

A non-Chinese citizen with PR status can therefore make representations to the Immigration Department about their individual circumstances resulting from the pandemic. If the department is satisfied the individual has not ceased to be ordinarily resident in Hong Kong, they can retain their status. Each case is determined on its merits. If the person does lose their PR status, they lodge an appeal to the Registration of Persons Tribunal under section 3D of the Registration of Persons Ordinance (Cap. 177).

Summary

While loss of PR status is not quite the drastic downgrading many citizens fear – after all, they do retain many of their rights, including being allowed to live and work here without restriction – it can be an inconvenience. Further, it is an emotive topic for some, especially if they have been long-time residents of Hong Kong. Citizens in any doubt regarding their PR status are strongly advised to seek legal advice.

Senior Partner in BC&C since 2004, Colin Cohen has vast experience in the highest levels of Hong Kong’s legal system, leading teams in complex corporate crime cases, high-conflict civil litigation, dispute resolution, landmark judicial reviews and Court of Final Appeal hearings. In the course of his career, he has co-ordinated defence teams on some of the territory’s most high-profile court cases. He can be contacted at colin@boasecohencollins.com.