I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
Hong Kong, a major international financial and business centre and the gateway to China, has an extremely liberal and flexible business immigration policy. This policy encourages investments into Hong Kong and facilitates the transfer of business and professional staff of international businesses that have operations in Hong Kong or who wish to set up here.
The nationals of some 170 countries and territories may enter Hong Kong without a visa as visitors for periods varying from seven days to six months.2 However, persons who are admitted to Hong Kong as visitors are not permitted to be employed without first obtaining approval from the Director of Immigration.
Although Hong Kong is part of the People’s Republic of China (China), Article 154 of the Basic Law (Hong Kong’s Constitution) provides that the Hong Kong Special Administrative Region (HKSAR) government may apply immigration controls on entry into, stay in and departure from the region by persons from foreign states and regions.
Thus, Hong Kong’s immigration and visa policy is independent from that of China and, under the ‘one country, two systems’ policy, Chinese citizens who are mainland residents require an entry or exit permit to enter Hong Kong unless they are in transit through Hong Kong to an ongoing destination, in which case they may be granted a stay of seven days.
i Legislation and policy
The Immigration Ordinance (Chapter 115) and the Immigration Regulations (Chapter 115A) of the HKSAR cover issues such as the right of abode (permanent residence), immigration control, illegal immigration, Vietnamese refugees, detention and removal issues, conditions of stay, and criminal penalties for the employment of persons not legally authorised to work and for breach of conditions.
The actual policy and procedures on entry for employment in Hong Kong are not addressed in the Immigration Ordinance and Regulations but are set by way of government policy. This policy is subject to changes from time to time as new employment visa policies and schemes are announced and implemented in response to the perceived needs of employers in the business community and the economy of Hong Kong.
ii The immigration authorities
The Hong Kong Immigration Department (HKID) is responsible for enforcing Hong Kong’s immigration law and policy, and the Director of Immigration has broad discretion in making decisions. In the case of an adverse decision, a request for reconsideration may be entertained if there are new facts and significant additional information previously not considered.
Decisions on the right of abode (permanent residency) may be appealed to the Registration of Persons Tribunal under Section 3D of the Registration of Persons Ordinance, Chapter 177.
In addition, Section 53 of the Immigration Ordinance provides that any person aggrieved by a decision, act or omission of any public officer taken, done or made in the exercise or performance of any powers, functions or duties under this Ordinance may, by notice in writing lodged with the Chief Secretary for Administration within 14 days, object to that decision, act or omission.
A Section 53 appeal is a lengthy process and it should be noted that if the person seeking review is a visitor, lodging this appeal does not mean that the person will be permitted to stay in Hong Kong pending a decision on the appeal.
Finally, judicial review of the administrative action taken is also possible in the Court of First Instance, although, in practice, decisions of the Director of Immigration are rarely overturned.
iii Exemptions and favoured industries
Hong Kong does not provide for exemptions or preferential treatment based on industry sectors for employment visa categories. However, large publicly listed multinational companies that have an established track record of sponsoring employees on a recurring basis, and companies that have successfully obtained an employment visa for foreign personnel within the past 18 months immediately before an employment visa submission is made, are exempted from submitting the sponsor’s supporting business documents such as business registration records, audited financial statements, profit tax returns and other more extensive documents to confirm the sponsoring company’s financial viability and standing. In certain cases, high-value-added businesses with the aim of introducing new technology and start-up businesses supported by a government-backed programme with a rigorous vetting and selection process may be favourably considered.
Although not industry-sector specific, the high-scoring candidates applying under the Quality Migrant Admission Scheme (QMAS) (a visa category discussed in greater detail in Section V.ii) are short-listed for further assessment and will be passed on to the Advisory Committee on Admission of Quality Migrants and Professionals (the Advisory Committee) for recommendation of the allocation of the available quota based on Hong Kong’s socio-economic needs, the sectoral mix of the candidates, and other relevant factors.
Additionally, the HKID adjusts existing immigration policies flexibly to facilitate other Hong Kong governmental programmes. For example, in response to the Belt and Road Initiative announced by the Chinese government, with effect from 1 March 2017, the HKID has relaxed visa policy for nationals of Belt and Road countries, such as Cambodia, where nationals may now apply to enter Hong Kong for employment (under the General Employment Policy (GEP), the Supplementary Labour Scheme (SLS) or as foreign domestic helpers), investment (Entry for Investment as Entrepreneurs), training or study, as well as under the QMAS, the Immigration Arrangement for Non-Local Graduates (IANG), and the Admission Scheme for the Second Generation of Chinese Hong Kong Permanent Residents (ASSG). Additionally, the mutual visa-free visit arrangement between Hong Kong and Belarus came into effect on 13 February 2018, under which nationals of Belarus may visit Hong Kong visa-free for a stay of up to 14 days for each visit.3
II INTERNATIONAL TREATY OBLIGATIONS
Under the Sino-British Joint Declaration, China assumed sovereignty over Hong Kong on 1 July 1997 and Hong Kong became a Special Administrative Region of the People’s Republic of China under the model of ‘one country, two systems’.
Article 13 of Annex 1 to the Joint Declaration states that the International Covenant on Civil and Political Rights (ICCPR), which was ratified by the United Kingdom in 1976 and extended to Hong Kong, shall remain in force in Hong Kong after 1997.
Article 39 of the Basic Law also states that the ICCPR, the International Covenant on Economic, Social and Cultural Rights and the International Labour Convention as applied to Hong Kong shall remain in force.
These treaties address human rights, civil rights and labour rights and do not confer any benefits to specific nationalities; nor do they apply in respect of residence permits, right to work, etc. However, in Ng Ka Ling v. Director Immigration,4 a challenge was made to the legality of a retroactive legislative amendment restricting the right of abode only to a child born in Mainland China who had at least one Hong Kong permanent resident parent at the time of the child’s birth and who was in possession of a certificate of right of abode issued by the Director of Immigration, based in part on the ICCPR as well as the Basic Law.
In ruling the retroactive legislation unconstitutional, the Court of Final Appeal held that, as the ICCPR applied to Hong Kong, and the right of abode is a core right under the ICCPR, based upon the ICCPR and other international treaties, taking away a core right by retroactive legislation was unconstitutional. The HKSAR government, however, requested the Standing Committee of the National People’s Congress (NPCSC) to interpret the Basic Law provisions concerning the right of abode, and the Court of Final Appeal decision was effectively overruled by the NPCSC.
III THE YEAR IN REVIEW
As economic conditions changed and attracting passive capital investment entrants is no longer a priority for the HKSAR government, the HKID suspended the Capital Investment Entrant Scheme (CIES) with effect from 15 January 2015.5 This programme has remained suspended and although the government policy is that all cases filed prior to the effective date of the suspension of the programme would be processed to conclusion, it appears that very few resources have been committed to clearing up the backlog of pending cases as they are taking about three years from initial filing to approval.
The increase in the initial grant of employment visa status from 12 months to 24 months by the HKID across the employment visa categories in May 2015,6 as well as the General Points Test (GPT) of the QMAS, has made the processing of visas more efficient. Employers are also pleased with the new visa extension pattern in a ‘three-three’ year pattern instead of the old ‘two-two-three’ year pattern, and the special ‘top-tier’ scheme for certain employees to be granted an extension for six years. Top-tier status employees are those who have been granted employment visas for not less than two years and have assessable income for salaries tax of not less than HK$2 million in the previous year of tax assessment.7 Entrants qualified for top-tier status who have been granted a six-year extension may also change employment freely without the need to obtain prior approval from the HKID. This flexible arrangement gives the top-tier entrants an incentive to continue their career in Hong Kong and to remain in Hong Kong permanently.
In an effort to attract the second generation of Chinese Hong Kong permanent residents from overseas to Hong Kong, the ASSG was launched in May 2015. The purpose of this scheme is part of the HKID’s new initiative and efforts to attract and retain talent as many second-generation Chinese Hong Kong permanent residents are highly educated and their return for residence, employment and business is regarded as a positive addition to Hong Kong. The approved applicants are granted an initial one-year visa without having to show that they have employment sponsorship or having other conditions of stay imposed.8
i Immigration enforcement initiatives
The HKID accepts non-refoulement cases filed directly by persons subject or liable to removal or deportation (or whose surrender is requested in surrender proceedings) from Hong Kong who claim that the expulsion, return or extradition of them to another country would expose them to the risk of torture and it continues to process genuine non-refoulement cases through the unified screening mechanism to determine claims for non-refoulement protection
The HKID has taken concrete steps to deter and crack down on schemes involving arrangement of doubtful visitors entering Hong Kong to lodge claims for non-refoulement because of concerns arising from reports concerning some agencies in India advertising a fictitious ‘asylum visa’. Under these schemes, arrangements are made for Indian nationals to come to Hong Kong as visitors, with a range of ‘services’ provided, including transportation, provision of legal services to ensure successful entry to Hong Kong and subsequent lodgement of a non-refoulement claim, as well as arrangement of unlawful employment for these visitors while their cases are pending screening. Apart from seriously abusing the non-refoulement screening mechanism, these illegal and fictitious services and arrangements may involve serious criminal offences amounting to human trafficking.
Beginning on 23 January 2017, Indian nationals who wish to travel to Hong Kong as business visitors or pleasure visitors must apply for online pre-arrival registration before they can continue to enjoy the current 14-day visa-free visit privileges or enter Hong Kong during transit. Pre-Arrival Registration (PAR) for Indian nationals is free of charge and the application result is instantaneous via the online system. Successful Indian national registrants are required to print out the approval notification slip for PAR generated by the system. The authorisation is normally valid for six months and the holder of the notification slip may enter with his or her registered Indian passport for multiple visits to Hong Kong for a stay of up to 14 days per visit. PAR is implemented to prevent visitors who pose a risk of illegal immigration from coming to Hong Kong, while at the same time allowing legitimate Indian national business visitors to secure approval to visit Hong Kong.
At the end of 2017, a total of 429,715 applications for PAR had been received and the successful rate for PAR registrants was over 90 per cent. From the implementation of PAR until the end of 2017, the monthly average of Indian overstayers dropped by about 80 per cent while the number of Indian nationals lodging non-refoulement claims decreased by about 70 per cent compared with the monthly average figure in 2016.9
There has been an increasing number of non-refoulement claims lodged by non-ethnic Chinese illegal immigrants (NECIIs), overstayers and persons who have been refused permission to land in Hong Kong, and smuggling from mainland China has been identified as the obvious means of arrival of the claimants in Hong Kong. The majority of arrivals originate from countries without visa-free access to Hong Kong, including Vietnam, Pakistan and Bangladesh. The HKID has worked with the Hong Kong Police Force (HKPF) and the mainland Chinese authorities in joint efforts and special operations to combat illegal immigration activities at source in various mainland Chinese provinces, and this has led to the interception of over 67,000 NECIIs. Overall, 53 organised syndicates and 293 cases of attempted illegal entry into Hong Kong, involving over 3,400 persons, have been foiled. Additional joint operations with mainland law enforcement agencies have led to the successful dismantling of several cross-boundary crime syndicates and a forgery syndicate specialising in producing forged Hong Kong identity cards for Vietnamese illegal immigrants and non-refoulement claimants. Most recently, a joint operation in October 2017 successfully cracked down on a cross-boundary syndicate specialising in smuggling Vietnamese illegal immigrants to Hong Kong, with a total of 19 persons arrested, including five core syndicate members and 14 Vietnamese illegal immigrants.10
As well as stepping up enforcement against syndicates, the Immigration (Unauthorized Entrants) (Amendment) Order 2016 was issued on 10 May 2016 to expand the definition of ‘unauthorised entrants’ to cover residents or former residents of Afghanistan, Bangladesh, India, Nepal, Nigeria, Pakistan, Somalia and Sri Lanka who do not have valid visas, and to enhance the penalties for smuggling illegal immigrants from these countries to combat human-trafficking syndicates. Since the Order came into effect it has had a strong deterrent effect, with hearings having been conducted in a number of cases in local courts, and with imprisonment of up to five years and three months in one case to reflect the seriousness of the offence.11
IV EMPLOYER SPONSORSHIP
Hong Kong’s general policy is to grant employment visas to individuals who are professionals with specific skills, knowledge or work experience of value that is not readily available in the local labour market. There are four major categories of sponsor-based employment visas:
- the GEP, which is applicable to foreign nationals and Chinese nationals who have obtained overseas permanent residency or who have been physically abroad for at least one year immediately prior to submitting an application. Chinese residents of the mainland and nationals of Afghanistan, Cuba, Laos, North Korea, Nepal and Vietnam are precluded from applying for employment visas under the GEP in Hong Kong;12
- the Admission Scheme for Mainland Talents and Professionals (ASMTP), which is applicable to Chinese nationals who are mainland residents. Applications under this category are processed by the Mainland Residents Section of the HKID. In an ASMTP application, the Chinese national applicant must submit a letter of consent as part of the visa application form. The letter of consent must be completed, signed and stamped by the applicant’s present work unit or employer in mainland China, or other relevant mainland China authorities where his or her personnel or employment records are kept. The purpose of the letter of consent is to release the applicant to work in Hong Kong should the application be approved. In 2017, a total of 12,381 applications were approved under the ASMTP, mainly in employment sectors for the arts and culture, academic research and education, and financial services;13
- the IANG, which is an employment visa category specifically tailored for applicants who are non-local graduates who have obtained an undergraduate degree or higher qualification in a full-time and locally accredited programme in Hong Kong. The IANG permits them to stay or return to work in Hong Kong. In 2017, 9,331 non-local graduates were given permission to stay or return and work in Hong Kong through the IANG visa category;14 and
- the training visa, which is applicable to both foreign national and Chinese national mainland resident applicants with lesser professional experience. It is convenient for overseas companies that wish to employ junior employees in their offices in Hong Kong on short-term training or internship programmes. Note that nationals from Afghanistan, Cuba, Laos, North Korea, Nepal and Chinese mainland residents are precluded from applying for training visas, with the exception of mainland Chinese applicants who are employees and business associates of well-established multinational companies based in Hong Kong.15
i Work permits
There is no separate ‘work permit’ process to obtain an employment visa or authorisation. Instead, the sponsoring employers lodge employment visa applications directly with the HKID.
Employment visa applications in the categories of GEP, ASMTP and training visas are lodged on the basis that there is a local sponsoring employer. Most applications under the GEP are lodged directly with the HKID by the sponsoring employers but they can also be submitted to the nearest Chinese embassy or consulate overseas where the applicants reside. However, for cases concerning ASMTP, applications must be lodged directly by the sponsoring employers in Hong Kong only. A routine application filed by a company with a well-established and reputable track record can be approved in four to six weeks. For newly established entities, it may take a longer period for the HKID to assess the application, and there may be a request for additional support documents to demonstrate the financial viability of the sponsoring employer.
In general, both new hires and intra-company transferees should meet the GEP application criteria set out by the HKID,16 but a greater degree of flexibility may be given to intra-company transfer applications based on the fact that these applicants may have specialised knowledge concerning the proprietary products and operations of their employer.
For the IANG visa, non-local graduate applicants who submit applications to the HKID within six months of the date of their graduation are classified as ‘non-local fresh graduates’. Those who submit applications beyond six months of the date of their graduation are classified as ‘returning non-local graduates’. Non-local fresh graduates who wish to apply to stay and work in Hong Kong are not required to have secured an offer of employment upon application. However, returning non-local graduates who wish to return to work in Hong Kong are required to secure an offer of employment upon application. An IANG visa can be approved for a maximum initial period of 12 months.
For the GEP and the ASMTP, the maximum validity of an initial approved visa is 24 months. Once the application is approved, the HKID will inform the local sponsoring employer or an authorised representative in Hong Kong by fax or email for collection of an entry visa sticker label with payment of the visa fee at the HKID. For the GEP applicant, the entry visa sticker label is valid for three months from the day of issuance, and must be forwarded to the applicant overseas for him or her to affix to a blank visa page of his or her passport. The applicant is also required to travel to Hong Kong to activate his or her Hong Kong employment visa within the three-month period.
For the ASMTP applicant who is a Chinese mainland resident, after the entry visa label is collected and sent to the applicant, he or she must bring along the entry visa sticker label issued by the HKID to apply for an exit endorsement from the Public Security Bureau where his or her household registration is kept in mainland China. The exit endorsement will be issued on an exit entry permit (EEP),17 which is a specific Chinese travel document issued to Chinese nationals who are mainland residents for their travel to Hong Kong and Macau. The old type of EEP was a booklet in which the applicant would affix the entry visa sticker label to a blank visa page of his or her EEP bearing the exit endorsement and travel to Hong Kong to activate his or her Hong Kong employment visa. The new type of EEP is an electronic card. In this case, the applicant will not affix the entry visa label to his or her EEP card. He or she must simply travel to Hong Kong with his or her EEP, bearing the exit endorsement from the Public Security Bureau in China, and present it with the entry visa sticker label to the HKID for activation of the Hong Kong employment visa within three months of the date it is issued.
The HKID seldom turns down well-prepared employment visa applications from established employers on behalf of well-qualified prospective employees who will be paid the prevailing salary for the sponsored position. If there are issues that need to be clarified, the HKID will contact the local sponsoring entity directly, or its representative, by fax, letter or telephone to request additional support documents or explanations to further support the application. In special circumstances, a well-prepared application with a well-qualified sponsoring employer and applicant may still be rejected by the HKID because of other considerations, such as the prospective employer having a record of sponsoring candidates with questionable qualifications, and potential security issues raised by the nationality of the applicant. However, reconsideration may be initiated for a rejected case if the sponsoring employer and applicant are able to provide new and additional evidence and documents to substantiate the business necessity of having the applicant in the proposed position.
ii Labour market regulation
If a position to be filled by a foreign national is a senior post requiring an academic degree, or years of professional or management experience, or both, and the position involves a high remuneration package, the HKID is unlikely to challenge the need for the foreign national and take the position that a candidate is available locally.
In addition, it should be noted that while the general factors to be considered before an employment visa application is approved are applicable to all cases, intra-company transfers of personnel are generally adjudicated by a more relaxed standard. However, the HKID will scrutinise and challenge the proffered salary if it seems not to be commensurate with prevailing local salaries. This is particularly true where companies try to bring in engineering, telecommunications or computer professionals from the Philippines or India to fill ‘line-level’ positions or where the prospective employee’s bachelor’s degree may not be considered the equivalent to a tertiary degree recognised internationally.
Apart from the mainstream employment categories such as the GEP and the ASMTP, the SLS continues in existence for the importation of labour at technician level or below. The SLS is a programme administered by the Labour Department of the HKSAR. The employer is required to demonstrate genuine difficulties in finding suitable employees locally before it can receive approval-in-principle to import workers from outside Hong Kong.
In an SLS application, after obtaining approval-in-principle, the employer must arrange for the prospective worker to submit an entry visa or permit application within three months of the date of the approval-in-principle, as the approval-in-principle will automatically lapse within the prescribed period if the application is not submitted in time.
Imported workers under the SLS must have suitable experience and qualifications for the position proffered, should be offered comparable terms and conditions of employment to those offered to local employees, and the employer must demonstrate financial ability to employ the applicants, provide suitable accommodation and guarantee the workers’ maintenance as well as repatriation upon termination of the contract.
Note that imported workers under the SLS are not permitted to bring their dependants into Hong Kong. Further, nationals from Afghanistan, Cuba, Laos, North Korea, Nepal and Vietnam are not eligible to apply.18
iii Rights and duties of sponsored employees
An employee with an approved employment visa may only work for the sponsoring employer. It is a breach of the conditions of stay for a person on an employment visa to take up a position with a different employer without first obtaining ‘change of employer’ authorisation from the HKID.
A person who violates his or her conditions of stay commits a criminal offence and, upon conviction, can be fined HK$50,000 and subject to a maximum of two years’ imprisonment under Section 41 of the Immigration Ordinance (Chapter 115).
Under the Immigration Ordinance, an employee who has ordinarily resided in Hong Kong for a continuous period of seven years on a qualifying employment or residence visa, such as Entry for Investment as Entrepreneurs, QMAS, GEP and IANG, may apply for permanent residence or the ‘right of abode’. However, foreign domestic workers holding employment visas are not eligible to apply.
A person is regarded as ‘ordinarily resident’ in Hong Kong if he or she remains in Hong Kong legally, voluntarily and for a settled purpose and does not cease to be ‘ordinarily resident’ if he or she is temporarily absent.
The application for right of abode is made by submitting Form ROP145, ‘Application for Verification of Eligibility for Permanent Identity Card’. Absences from Hong Kong, especially for a continuous period of six months or more, must be specified on the application form and supplemented with an explanation giving reasons for the absence. The factors to be considered in determining whether the absence is interruptive of ‘continuous ordinary residence’ include the reason, duration and frequency of any absence from Hong Kong, whether the applicant has a habitual residence in Hong Kong, whether he or she is employed by a HKSAR-based company; and the whereabouts of the immediate members of his or her family (spouse and minor children).
The HKID will consider all the facts of the case and barring circumstances that would seem to indicate that the applicant is no longer habitually a HKSAR resident, employment visa holders or their dependants will usually have their cases approved in four to six weeks.
V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
With the suspension of the CIES on 15 January 2015, persons interested in the self-employment or unsponsored employment visa category may nevertheless continue to apply for employment visas under the Entry for Investment as Entrepreneurs visa scheme through establishing a business in Hong Kong that the applicant will manage and direct, under the QMAS or under the ASSG.
i Entry for Investment as Entrepreneurs
Entrepreneurs who wish to establish or join in a business in Hong Kong may submit an application for Entry for Investment as Entrepreneurs. The essential criteria for the approval of this category of visa by the HKID is whether the business in which the investor has invested is of substantial benefit to the economy of the HKSAR.
The HKID has issued a Guidebook for Entry for Investment for Entrepreneurs.19 In an Entry for Investment as Entrepreneurs application, the applicant must submit evidence that he or she has a good educational background, good technical qualifications, proven professional activities, relevant experience and achievements. There is no prescribed minimum amount required to be invested, nor are there a minimum number of jobs that have to be created. However, a successful application almost always includes evidence provided to the HKID that local jobs have been created or will be created by the business within a reasonable time, and that local vendors and suppliers will benefit from the commercial activities of the investor’s company. The HKID will also favourably consider applications concerning introduction of new technology or skills, or a start-up business supported by a government-backed programme with a rigorous vetting and selection process, where the applicant is the proprietor, or a partner of a key researcher of the relevant project.
This category is not available to nationals of Afghanistan, Cuba, North Korea, Laos, Nepal and Vietnam.
Chinese residents of mainland China are also not eligible to apply. However, overseas Chinese nationals holding Chinese passports may apply if the applicant has permanent residence overseas; or if the applicant has been residing overseas for over one year immediately before the submission of the application (‘overseas’ refers to places outside mainland China, Macao SAR and HKSAR).
The actual amount of capital invested to qualify for an investment visa will depend on the nature of the business. At a minimum, the business should be sufficiently capitalised to finance the start-up costs, including the securing of physical premises, the hiring of one to two local employees and the fulfilment of the short-term cash flow needs of the company as its business activities get under way.
Thus, depending on the nature of the business and the nationality and background of the investor,20 it is possible to invest as little as HK$390,000 to HK$780,000 and still qualify for an employment (investment) visa. This does not mean, however, that a one-person trading business operating out of a home on a shoestring budget or out of a sublease of a small part of an office with limited capital at risk that generates modest revenues will be approved.
In general, if the investor has less than HK$1 million invested, the application will be much more closely scrutinised. In any event, an investment applicant must, at a minimum, demonstrate that he or she has made a long-term commitment to Hong Kong by executing a commercial lease for adequate business premises, provide documentary evidence of the business entity created, demonstrate that it has been adequately capitalised for the type of business activities it is embarking on, and provide a detailed and comprehensive business plan to explain how that business will substantially benefit Hong Kong in the long term.
Additionally, the HKID will require a business plan with detailed information about the nature of the business, its mode of operations, projected turnover and hiring plans, as well as a listing of its business connections and partnerships in Hong Kong and overseas, proof of business activities (such as letters of credit, bills of lading, shipment papers, contracts or agreements reached and realised), a detailed résumé of the applicant’s background, as well as a full description of the post to be taken up by the applicant, along with letters of support from local business associates, vendors, providers of services and manufacturers, and documents verifying the financial standing and source of finance of both the applicant and his or her company, including bank account statements, bank reference statements, banking facilities letters and financial statements.
The HKID does not tally separate numbers of approved cases for GEP and Entry for Investment as Entrepreneurs visas as these two categories fall within the scope of the GEP.21 In 2017, a combined total of 39,952 foreign professionals and entrepreneurs were admitted to Hong Kong on employment visas under the GEP and Entry for Investment as Entrepreneurs.
The QMAS was introduced in June 2006 to attract highly skilled or talented people from China as well as overseas to settle in Hong Kong without employment sponsorship. This Scheme is not applicable to nationals of Afghanistan, Cuba, Laos, North Korea, Nepal and Vietnam.22
To qualify for consideration, an applicant must first meet certain prerequisites before applying for assessment under one of the two points-based tests. The prerequisites are as follows:
- age – the applicant must be over 18 years of age;
- financial requirement – the applicant must have sufficient financial resources to support and accommodate himself or herself and his or her dependants without having to rely on public assistance during his or her stay in Hong Kong. The four major types of assets generally acceptable as proof of net worth throughout the initial 12-month stay in Hong Kong include bank deposits, real estate, securities and interests in privately held business;
- good character – the applicant must not have any criminal records or adverse immigration record in Hong Kong or elsewhere. However, a person with a criminal conviction that is no longer shown on official records because the conviction is spent, or because of rehabilitation legislation in the country where the conviction occurred, may be considered;
- language – the applicant should be proficient in written and spoken Chinese or English; and
- basic education qualification – the applicant must normally hold a first degree from a recognised university or tertiary educational institute. In special circumstances, documentary evidence of good technical qualifications, proven professional abilities, or experience and achievements may be considered in lieu of a degree.
Applicants who meet the above prerequisites may choose to be assessed under the GPT or the Achievement-based Points Test (APT).
GPT (maximum 195 points)
The five factors of the GPT are:
- age – an applicant may be awarded points on a scale according to age, with a maximum of 30 points for those aged 18 to 39;
- academic or professional qualifications – an applicant may acquire points for either academic or professional qualifications, with a maximum of 70 points, of which a maximum 40 points are awarded to those with a doctoral degree, or two or more master’s degrees;
- work experience – maximum of 40 points for not less than 10 years’ graduate or specialist-level work experience, including at least five years in a senior role;
- language proficiency – maximum of 20 points for being proficient in written and spoken Chinese (Mandarin or Cantonese) and English; and
- family background – maximum of 20 points, with five points for one immediate family member (spouse, parent, sibling or child) who is a Hong Kong permanent resident residing in Hong Kong, five points for each accompanying married spouse educated to the equivalent level of a degree or above, and five points for each unmarried dependent child under 18 (maximum of 10 points).
The minimum pass mark is subject to change but is currently set at 80.
APT (no points or 195 points)
This test is for individuals with exceptional talent or skill and who have outstanding achievements. A person who applies under this test is either awarded a full score of 195 points or granted no points and refused immediately. To qualify, an applicant should meet the following criteria:
- he or she must have received an award for exceptional achievement (e.g., Olympic medals, Nobel prize, national or international awards); or
- he or she can show that his or her work has been acknowledged by his or her peers or has contributed significantly to the development of his or her field (e.g., a lifetime achievement award from industry).
Note, however, that applicants who score the minimum pass mark under the GPT or the one-point scoring factor of 195 points under the APT will be ranked according to the scores awarded, but high-scoring applicants are not necessarily granted a quota allotment. Instead, high-scoring applicants will be short-listed for further assessment and passed on to the Advisory Committee for recommendation of the allocation of the available quota based on the socio-economic needs of Hong Kong, the sectoral mix of candidates and other relevant factors.
The Advisory Committee, which is appointed by the Chief Executive and comprises official and non-official members, will consider factors such as the university from which the applicant graduated, whether the applicant furthered his or her studies overseas, the experience of the applicant and his or her achievements in school or at work before determining whether the applicant is a talent needed in Hong Kong.
In 2017, 411 applicants were allotted under the quotas, with 381 under the GPT and 30 under the APT. Since implementation of the scheme, successful applicants under the GPT were mainly from four sectors: financial and accounting services; information technology and telecommunications; architecture, surveying, engineering and construction; and manufacturing. Under the APT, successful applicants mainly came from three sectors: sports; arts and culture; and broadcasting and entertainment.23
Approval in principle
The Advisory Committee meets on a quarterly basis, and successful applicants allotted places will be issued with an approval-in-principle letter by the HKID and invited to come to Hong Kong for an in-person interview for verification of documents submitted.
At the interview, the applicant must satisfy the HKID that all statements made or information provided are true and complete before a formal approval is granted.
While attaining a pass mark does not guarantee admission, especially if there is a large pool of eligible applicants to select from, the QMAS is an additional option for persons wishing to settle in Hong Kong who do not have employer sponsorship and who do not qualify for other visa categories of admission such as Entry for Investment as Entrepreneurs, which requires the applicant’s active participation in a business that he or she has established or joined in Hong Kong.24
The ASSG was launched in May 2015 as part of the HKID’s efforts to attract and retain talents of second generation Chinese Hong Kong permanent residents, as many of them are highly educated and their relocation to Hong Kong for residence, employment and business is regarded as a positive addition to Hong Kong. The scheme is not applicable to applicants who are nationals of Afghanistan, Cuba, Laos, North Korea, Nepal and Vietnam.
The approved applicants are granted an initial one-year visa without having to show that they have employment sponsorship or other conditions of stay.25 The following application criteria must be met under the ASSG:26
- applicants must be aged between 18 and 40 at the time of application;
- applicants must have been born overseas (i.e., not born in mainland China, the HKSAR, the Macao SAR or Taiwan);
- applicants must have at least one parent who is a holder of a valid Hong Kong permanent identity card at the time of application and who was a Chinese national who had settled overseas at the time of the applicant’s birth;
- applicants must have a good education background, normally a first degree but, in special circumstances, good technical qualifications, proven professional abilities or relevant experience and achievements supported by documentary evidence, or a combination of these, may also be accepted;
- applicants must be proficient in written and spoken Chinese (putonghua or Cantonese) or English; and
- applicants must have sufficient financial means (including for their dependants, if any) to be able to meet the living expenses for their maintenance and accommodation in the HKSAR without recourse to public funds.
By the end of 2017, the HKID had received 550 applications, of which 315 applications were approved. The majority of the approved applicants came from the United States, Canada, Australia, the Netherlands and the United Kingdom, with bachelor’s or master’s degrees, mainly in engineering, finance, information technology or law. Some of the approved applicants also had relevant experience that could supplement Hong Kong’s human capital.27
VI OUTLOOK AND CONCLUSIONS
To maintain its competitive edge and its leading position as an international business and economic centre in the Asia Pacific region, the Hong Kong government has always maintained a liberal and open immigration policy towards businesses, investors and professionals who wish to invest and work in Hong Kong, and the HKID facilitates the efficient processing of visas for persons who will contribute to Hong Kong’s economic development and prosperity.
The HKID’s relaxation of the initial duration of stay granted for a number of visa categories, including the GEP, ASMTP, entrants admitted under the GPT and APT of the QMAS and the newly created category of the ASSG, has been welcomed by businesses. In alignment with the HKID’s efforts to retain talents and professionals, the visa extension pattern for the above-mentioned categories has also been relaxed from the ‘two-two-three’ year extension pattern, to a ‘three-three’ year extension pattern, along with a six-year visa extension permissible for persons qualified for the top-tier programme under the GEP and ASMTP. The HKID also allows the top-tier entrants to change employment freely without the need to obtain prior approval from the HKID. This arrangement further facilitates these top-tier entrants’ long-term career and business development in Hong Kong and is an incentive for them to remain in Hong Kong in the long run.
The offering of a longer duration of stay in the initial employment visa approval period and the pattern of visa extensions for these visa schemes add up to eight years of stay in Hong Kong and also facilitates the entrants’ applications for right of abode to become permanent residents of Hong Kong upon fulfilling not less than seven years of ordinary residence.
In sum, Hong Kong’s immigration policy is open and flexible to highly skilled people and responsive to the economic conditions and labour needs of businesses. To maintain its stature as ‘Asia’s world city’, the HKSAR government will continue to ensure that its immigration policies and directions are flexible and align with the overall domestic legislation and policies that concern the demographics of Hong Kong while it is gradually reintegrated with the mainland.
On the other hand, strict immigration enforcement initiatives will continue to be launched against illegal immigrants and overstayers.
1 Eugene Chow is the principal of Chow King & Associates.
2 A list of these countries can be found at www.immd.gov.hk/eng/services/visas/visit-transit/visit-visa-entry-permit.html.
3 Immigration Department Review 2017 (13 February 2018) www.immd.gov.hk/eng/press/press-releases/20180213c.html.
4  1 HKC 291, 2 HKC far 4 (CFA 29 January 1999).
5 Immigration Department Review 2017 (13 February 2018) www.immd.gov.hk/eng/press/press-releases/20180213c.html.
6 Immigration Department Review 2017 (13 February 2018) www.immd.gov.hk/eng/press/press-releases/20180213c.html.
9 Immigration Department Review 2016 (26 January 2017) www.immd.gov.hk/eng/press/press-releases/20170126.html.
10 Immigration Department Review 2017 (13 February 2018) www.immd.gov.hk/eng/press/press-releases/20180213c.html.
11 Immigration Department Review 2017 (13 February 2018) www.immd.gov.hk/eng/press/press-releases/20180213c.html.
13 Immigration Department Review 2017 (13 February 2018) www.immd.gov.hk/eng/press/press-releases/20180213c.html.
14 Immigration Department Review 2017 (13 February 2018) www.immd.gov.hk/eng/press/press-releases/20180213c.html.
20 While all applicants are supposed to meet the same criteria officially, in the author’s experience, well-educated Americans, Canadians and nationals of western European countries with strong prior professional or business experience seem to have a more relaxed standard applied to them.
21 Immigration Department Review 2017 (13 February 2018) www.immd.gov.hk/eng/press/press-releases/20180213c.html.
23 Immigration Department Review 2017 (13 February 2018) www.immd.gov.hk/eng/press/press-releases/20180213c.html.
24 For a detailed discussion of the Entry for Investment as Entrepreneurs visa category, see Eugene Chow, ‘Hong Kong Resident Visas for Entrepreneurs and Investors’, published in Immigration Options for Investors and Entrepreneurs; pp. 605–610 (AILA, Third Edition, July 2014), available at: http://agora.aila.org/product/detail/2253.
27 Immigration Department Review 2017 (13 February 2018) www.immd.gov.hk/eng/press/press-releases/20180213c.html.