Requirement for maintaining PR status amid Covid-19 pandemic

Simon Wang made this Freedom of Information request to Immigration Department

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The request was successful.

Dear Immigration Department,

Referring to a letter to the editor published by Ronald Taylor https://www.scmp.com/comment/letters/art... here is the question for the department to answer under the Code on Access to Information

The Immigration Department advises that a non-Chinese national, who has been absent from Hong Kong for a continuous period of not less than 36 months since ordinarily residing in Hong Kong, will lose their permanent residency status.
In view of the inability of some to return to Hong Kong at the present time, will the government relax this requirement?

Please also consider writing a letter in SCMP in response.

Thanks in advance.

Yours faithfully,

Dr Simon Wang, Ph.D., FHEA 
Lecturer in English 
Language Centre 
Hong Kong Baptist University 
Kowloon Tong, Hong Kong 
Phone: (852) 34117044
http://lc.hkbu.edu.hk/staff_simon.php  
Writing for the Public Project https://sites.google.com/a/hkbu.edu.hk/w...

ETO_ROA, Immigration Department

Dear  Dr. Wang,

I refer to your application for Code on Access to Information dated 9
March 2021.  The matter is receiving our attention and we will revert to
you as soon as possible.
Should you have any enquiries, please feel free to contact the undersigned
at tel (852) 2829 4030.

Yours faithfully,

Ms WY CHUNG
for Director of Immigration

ETO_ROA, Immigration Department

Dear Dr. Wang,
I refer to your email dated 9 March 2021 regarding an application for Code
on Access to Information.  Further to our interim reply dated 12 March
2021, please find below our substantive reply.
Generally, Hong Kong permanent residents (“HKPRs”) of Chinese nationality
will not lose their HKPR status and shall still enjoy the right of abode
in Hong Kong as long as they remain Chinese nationals, regardless of
whether they are absent from Hong Kong for a long duration.

However, according to paragraph 7(a) of Schedule 1 to the Immigration
Ordinance (Cap. 115), an HKPR who is not of Chinese nationality will lose
his/her HKPR status if he/she has been absent from Hong Kong for a
continuous period of not less than 36 months since he/she ceased to have
ordinarily resided in Hong Kong.

Under the Immigration Ordinance, the Director of Immigration is not given
any discretion to waive any person from compliance with the above-said
legal provision in respect of the 36-month period of absence from Hong
Kong on grounds of special or unforeseen circumstances (e.g. under the
impact of the COVID-19 epidemic), nor is he given any power to extend the
relevant time period to beyond 36 months.

Having said the above, section 2(6) of the Immigration Ordinance empowers
the Director of Immigration to determine whether the person concerned has
ceased to be ordinarily resident in Hong Kong or is only temporarily
absent from Hong Kong by taking into consideration all circumstances of
each case, including:

*         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).

Accordingly, an HKPR not of Chinese nationality who has been absent from
Hong Kong due to the COVID-19 epidemic may make a representation about
his/her individual circumstances to the Immigration Department ("ImmD").
 ImmD will take into account all circumstances of the case in accordance
with the above legal provision to determine whether the person concerned
has ceased to be ordinarily resident in Hong Kong or is only temporarily
absent from Hong Kong.  If ImmD is satisfied that the person concerned has
not ceased to be ordinarily resident in Hong Kong, the person concerned
will not lose his/her HKPR status.
       
In the event that an HKPR who is not of Chinese nationality loses his/her
HKPR status, pursuant to section 2AAA of the Immigration Ordinance, he/she
still has the right to land in Hong Kong.  In other words, he/she will be
able to enter Hong Kong to live, study or work without the need for prior
application for a visa or an entry permit to Hong Kong.  He/she is also
not subject to any limit of stay in Hong Kong.

To sum up, whether or not a person still retains his/her HKPR status shall
be determined by the individual circumstances of that person.  ImmD will
consider the circumstances of each case in accordance with the relevant
legal provisions.  For further enquiries about an individual case, please
contact Mr LEE Chun-chiu of the ImmD, at 2829 3095 for follow-up.

Yours sincerely,

LEE Chun-chiu
for Director of Immigration