Seven years to the right of abode: managing absences and ordinary residence

The statutory test in plain terms

Under Schedule 1 to the Immigration Ordinance, a person who is not of Chinese nationality becomes a Hong Kong permanent resident if they entered Hong Kong with a valid travel document, have ordinarily resided in Hong Kong for a continuous period of not less than seven years immediately before applying, and have taken Hong Kong as their place of permanent residence. The status is not held until the Immigration Department (ImmD) approves an application for verification of eligibility for a permanent identity card. A Chinese citizen needs the seven continuous years but not the 'immediately before' element, and does not lose the status through absence in the way a non-Chinese permanent resident can.

ImmD's published definition of 'ordinarily resident' is a person who remains in Hong Kong legally, voluntarily and for a settled purpose, such as education, employment or residence, whether of short or long duration. Temporary absence does not end ordinary residence. Whether a person has ceased to be ordinarily resident depends on their circumstances, and ImmD lists the factors: the reason, duration and frequency of any absence; whether the person has habitual residence in Hong Kong; whether they are employed by a Hong Kong-based company; and the whereabouts of their principal family members, meaning spouse and minor children. For the permanent-residence declaration ImmD also considers reasonable means of income and whether taxes have been paid.

What does not count

Section 2(4) of the Ordinance, summarised on ImmD's page, lists periods that are not treated as ordinary residence: time in Hong Kong after unlawful landing; time in contravention of any condition of stay; time as a refugee or in detention pending removal; time as an imported contract worker under a Government labour importation scheme; time as a foreign domestic helper; service as a consular officer or in the Hong Kong Garrison; holding a prescribed Central People's Government travel document; and imprisonment or detention under a court sentence.

The one that catches professionals is contravention of a condition of stay. Working for a new employer before approval of a change of employment, remaining in Hong Kong after a limit of stay expired while an extension was pending without the Director's permission, or a dependant of a student working without permission, are each periods that do not count and may break continuity. Note that a visitor permission is lawful residence but is rarely residence for a settled purpose; a gap bridged by a tourist entry should be reviewed before the application is filed, not after refusal.

Absences: there is no magic number

ImmD does not publish a maximum number of days abroad per year, and anyone who quotes one is guessing. The assessment is of reasons, duration and frequency together with the other factors. Three patterns illustrate the range.

• Frequent short business trips from a Hong Kong employer, with the family living in Hong Kong and children in Hong Kong schools: these are temporary absences in the ordinary sense and are consistent with ordinary residence.
• A long single posting abroad by the Hong Kong employer, with the family remaining in Hong Kong and the home retained: harder, but the Hong Kong employment, habitual residence and family location all point to continuing residence. Document the posting, its fixed term and the return.
• Family and home relocated abroad, with the principal returning for a few days a month to keep the visa alive: this is the pattern most likely to fail. The absences are not temporary; the habitual residence and the family are elsewhere; and the declaration that Hong Kong is the only place of permanent residence may not be true.

The right question is not 'how many days am I allowed out' but 'if ImmD asks where my life was in year four, what will the documents say'.

Keeping the record from day one

A seven-year file is easy to keep contemporaneously and difficult to reconstruct. WG recommends the following from the first lawful entry for a settled purpose, including as a student.

• A travel log of every departure and return with dates, destination and reason, reconciled annually to passport stamps. Hong Kong's e-channel leaves no stamp, so the log is the primary record.
• Copies of every permission, extension label and identity card, with the exact dates; any gap, however short, noted and explained.
• Employment contracts, payslips, MPF statements and salaries tax demand notes for every year.
• Tenancy agreements or title deeds, utility bills and bank statements showing a continuous Hong Kong address.
• Children's school enrolment letters and reports; the spouse's employment or residence evidence.
• Evidence of any foreign residence status held, and advice on whether it is compatible with the declaration that Hong Kong is the only place of permanent residence.

Each family member needs their own file. Permanent residence is not inherited; the spouse and each child are assessed on their own seven years, and a child born in Hong Kong to a non-Chinese permanent resident holds status only until 21.

Filing and afterwards

The application is made on Form ROP145 with the ROP146 declaration, in Hong Kong; ImmD states that the applicant must be in Hong Kong at the time of application and that applications from overseas will not be entertained. The seven years must run immediately before the application date. Verification and the first permanent identity card are free of charge, and ImmD's published normal processing time is about six weeks where documents are in order.

After approval, the status for a non-Chinese permanent resident is conditional in one respect: if they cease to be ordinarily resident and are then absent for a continuous period of not less than 36 months, they lose the right of abode and acquire the right to land. ImmD states that the Director has no discretion to waive this, including for pandemic-era absences. The right to land still allows entry to live, work and study without restriction, but it is not the right of abode and does not support the sponsorship rights or the status that the family worked seven years to obtain. A family planning a posting abroad after permanence should therefore plan returns, keep the Hong Kong home and employment ties where possible, and note the date on which 36 months would run.