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 163 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. Nonetheless, 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 May 2018, the Innovation and Technology Commission (ITC) of the HKSAR and the HKID commissioned a three-year pilot scheme, Technology Talent Admission Scheme (TechTAS), a three-year fast-track pilot scheme for eligible technology companies and institutes to admit non-local technology talent to undertake research and development (R&D) work for them in the HKSAR in the areas of biotechnology, artificial intelligence, cybersecurity, robotics, data analytics, financial technologies or material science.3

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. In response to the Belt and Road Initiative announced by the Chinese government, with effect from 1 March 2017, the HKID has relaxed employment-related visa policy for nationals of Belt and Road countries, such as Cambodia, whose 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). This arrangement for Cambodian nationals also apply to the newly established TechTAS scheme.

As of 15 September 2018, the HKID has added Thailand to the mutual use of automated immigration clearance services in addition to Australia, Germany, Korea and Singapore to facilitate business, trade and tourism between countries and regions with close ties to Hong Kong. Under the new arrangement, eligible holders of a HKSAR electronic passport can use the automated immigration clearance service in Thailand without prior enrolment. By reciprocity, eligible holders of a Thai passport can also use the e-channel service in Hong Kong on arrival.4

The Hong Kong government has continued to lobby for mutual visa-free visit arrangements. In 2018, Antigua & Barbuda, Belarus, Bolivia and Myanmar agreed to grant visa-free access or visa-on-arrival to HKSAR passport holders.5 Most recently, the HKSAR government has entered into agreements on mutual visa-free arrangements with the governments of Armenia and Panama. As of 10 February 2019, HKSAR passport holders may visit Panama visa-free for a stay of up to 30 days. Likewise, national passport holders of Panama will also enjoy 30 days' visa-free access to Hong Kong. As of 3 March 2019, HKSAR passport holders may visit Armenia visa-free for a stay of up to 180 days while national passport holders of Armenia will enjoy 30 days' visa-free access to Hong Kong.6

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,7 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

The most significant development in 2018 was the landmark judgment handed down by the Court of Final Appeal on 4 July 2018 in QT v. Director of Immigration, which ruled that the HKID must issue a dependent visa to a same-sex partner for immigration purposes. Effective 18 September 2018, the HKID has revised the immigration policy on application for entry of non-local dependents to permit sponsors to bring in dependents, provided that the sponsors and the dependents have entered into a same-sex civil partnership, same-sex civil union, same-sex marriage, opposite-sex civil partnership or opposite-sex civil union outside Hong Kong in a jurisdiction that legally recognises such relationships.8

The ruling was welcomed by a host of global financial institutions, law firms, executive search firms and other businesses, as it strengthens Hong Kong's competitiveness and ability to attract global talents. Recruiting and relocating talent to Hong Kong has in the past been hampered by the immigration restrictions of same-sex couples.

i Immigration enforcement initiatives

The HKID processes and determines genuine claims for non-refoulement protection 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 through the Unified Screening Mechanism (USM), which was commenced on March 2014. The HKID has also taken concrete steps to review its comprehensive strategy to tackle and pre-empt the issue of non-refoulement claims including prevention of the arrival of potential claimants, expediting screening procedures, strengthening enforcement and prompt removal of rejected claimants from Hong Kong. In 2018, a total of 1,216 non-refoulement claims were received, down by 34 per cent from 1,834 claims in 2017.9

Following the implementation of the USM, many non-refoulement claims were lodged by non-ethnic Chinese illegal immigrants (NECIIs) who arrived in Hong Kong through human trafficking and smuggling arranged by organised syndicates via mainland China from countries that do not enjoy visa-free access to Hong Kong, such as Bangladesh, Pakistan and Vietnam. The HKID has worked with the Hong Kong Police Force and the mainland Chinese authorities in joint efforts and special operations to combat illegal immigration activities in various mainland Chinese provinces. In 2018, a total of 639 NECIIs were intercepted, a drop of 87 per cent compared with the peak of 1,241 NECIIs intercepted in the third quarter of 2015.10

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

Other enforcement measures have also been taken to crack down on schemes involving foreign nationals entering Hong Kong to lodge claims for non-refoulement, following rising concerns from news reports that some agencies in India advertise a fictitious 'asylum visa' by providing arrangements and services for Indian nationals to come to Hong Kong as visitors, including transportation, the provision of legal services to ensure successful entry to Hong Kong, subsequent lodgement of a non-refoulement claim and the 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. As of 23 January 2017, Pre-Arrival Registration (PAR) was implemented by the HKID to encourage bona fide and legitimate Indian nationals visiting for business or leisure to secure approval to visit Hong Kong, and to deter visitors who have the intention to overstay or enter illegally.12

Under PAR, applicants must register online before they travel to Hong Kong to enjoy the privileges of 14-day visa-free visit or transit through Hong Kong to another destination. PAR for Indian nationals is free of charge and the online service provides instant application results; successful Indian national registrants are required to print out the approval notification slip for PAR generated by the system. 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.

At the end of 2018, a total of 663,885 Indian nationals had successfully completed PAR. From the implementation of PAR until the end of 2018, the monthly average of Indian overstayers dropped by about 80 per cent, while the number of Indian nationals lodging non-refoulement claims decreased by almost 80 per cent compared with the monthly average figure in 2016.13

IV EMPLOYER SPONSORSHIP

i Sponsor-based employment visas

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. Including the pilot fast-track programme of TechTAS, there are currently five major categories of sponsor-based employment visas:

a the GEP, which is applicable to foreign nationals and Chinese nationals who have obtained overseas permanent residency or 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;14

b the Admission Scheme for Mainland Talents and Professionals (ASMTP), which is only 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 2018, a total of 13,768 applications were approved under the ASMTP, mainly in employment sectors for the arts and culture, academic research and education, and financial services;15

c 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. This scheme is quota-free and non-sector specific, and does not apply to nationals of Afghanistan, Cuba, Laos, North Korea, Nepal or Vietnam. With effect from 14 May 2018, the IANG has been extended to cover non-local students who have obtained an undergraduate or higher qualification in a full-time locally accredited non-local programme in Hong Kong. In 2018, 10,150 non-local graduates were given permission to stay or return and work in Hong Kong through the IANG visa category;16

d 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. 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;17and

  • TechTAS (see Section I.iii), explained in further detail below.

ii TechTas

The TechTAS scheme is applicable to residents of Mainland China but does not apply to nationals from Afghanistan, Cuba, Laos, North Korea, Nepal and Vietnam.18 Eligible technology companies and institutes must first apply to the ITC for a quota, then submit an application to sponsor an eligible applicant to apply for an employment visa or entry permit to the HKID within the six-month quota-validity period.

The TechTAS scheme requirements specify that the applicant must be:

  1. employed as a full-time employee in Hong Kong by the employing company or institute;
  2. engaged principally in conducting R&D work in the areas of biotechnology, artificial intelligence, cybersecurity, robotics, data analytics, financial technologies or material science; and
  3. a postgraduate in science, technology, engineering or mathematics (STEM) subjects from a well-recognised university, which should be listed among the top-100 universities for STEM-related subjects in the latest world university ranking publications (including Quacquarelli Symonds, Shanghai Jiao Tong University Rankings, and Times Higher Education.

The ITC also stipulates that in the application for a quota under TechTAS, the sponsoring company or institute must fulfil the ITC's requirement to employ new local employees in technology-related work.19 The sponsoring company or institute must also be:

  1. a tenant, incubatee, grantee or occupant of the Hong Kong Science and Technology Parks Corporation (HKSTPC) (including Hong Kong Science Park, InnoCentre, or the industrial estates managed by HKSTPC) or Hong Kong Cyberport Management Company Limited (Cyberport); and
  2. engaged in the area of biotechnology, artificial intelligence, cybersecurity, robotics, data analytics, financial technologies or material science.20

As at the end of 2018, a total of 29 applications under TechTAS had been received, of which 24 had been approved.21

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, training visas and TechTAS 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 and TechTAS, applications must be lodged directly by the sponsoring employers in Hong Kong only. For routine GEP and ASMTP applications 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.

As TechTAS is a pilot fast-track scheme, the HKID has pledged a processing time of two weeks for a well-prepared and documented application. Because of the sector-specific nature of the employing companies or institutes, and applicants for TechTAS in high-level and complex technologies, the HKID stipulates that work experience is not compulsory for the applicant with a master's or doctoral degree, although a bachelor's-degree applicant should possess a minimum of one year's work experience in the relevant technology area.22

In general, both new hires and intra-company transferees should meet the GEP application criteria set out by the HKID,23 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, the ASMTP and the TechTAS 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 Chinese mainland residents applying for an employment visa under the ASMTP or the TechTAS, 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),24 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, the ASMTP and the TechTAS, 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.25

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, IANG and TechTAS 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.26 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.

The Entry for Investment as Entrepreneurs 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,27 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.28 In 2018, a combined total of 41,592 foreign professionals and entrepreneurs were admitted to Hong Kong on employment visas under the GEP and Entry for Investment as Entrepreneurs.29

ii QMAS

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.30

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:

  1. age – the applicant must be over 18 years of age;
  2. 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;
  3. 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;
  4. language – the applicant should be proficient in written and spoken Chinese or English; and
  5. 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 225 points)

The five factors of the GPT are:

  1. 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;
  2. 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; an additional 30 points will be allotted to a qualifying applicants with bachelor's degrees or higher awarded by a designated renowned or internationally recognised institution;31
  3. 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; an additional 15 points will be allotted to a qualifying applicant if he or she has at least two years' graduate- or specialist-level work experience with international exposure. The HKID specifies that the international work experience concerned refers to graduate- or specialist-level work experience outside the applicant's home country or territory;32
  4. the Talent List – a maximum of 40 points will be granted to the applicant if he or she meets the specifications of the respective profession under the Talent List, including specialising in waste treatment, asset management, marine insurance, actuaries, fintech, data and cybersecurity, innovation and technology, naval architecture, marine engineering, creative industries, and dispute resolution transactional law;33
  5. language proficiency – maximum of 20 points for being proficient in written and spoken Chinese (Mandarin or Cantonese) and English; and
  6. 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 225 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:

a he or she must have received an award for exceptional achievement (e.g., Olympic medals, Nobel prize, national or international awards); or

b 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 225 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 2018, 555 applicants were allotted under the quotas, with 527 under the GPT and 28 under the APT. Successful applicants under the GPT were mainly from four sectors: financial and accounting services; information technology and telecommunications; architecture, surveying, engineering and construction; and commerce and trade. Under the APT, successful applicants mainly came from three sectors: sports; arts and culture; and broadcasting and entertainment.34

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.35

iii ASSG

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.36 The following application criteria must be met under the ASSG:37

  1. applicants must be aged between 18 and 40 at the time of application;
  2. applicants must have been born overseas (i.e., not born in mainland China, the HKSAR, the Macao SAR or Taiwan);
  3. 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;
  4. 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;
  5. applicants must be proficient in written and spoken Chinese (Putonghua or Cantonese) or English; and
  6. 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 2018, the HKID had received 675 applications, of which 386 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.38

VI OUTLOOK AND CONCLUSIONS

To maintain its competitive edge and 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 policy on relaxing the initial duration of stay to two years for a number of visa categories, which now include the GEP, ASMTP, TechTAS39 and entrants admitted under the GPT of the QMAS, has been welcomed by businesses. Mirroring 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, the ASMTP, the TechTAS and GPT of the QMAS. 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 visa approval period and the pattern of visa extensions for the above-mentioned visa schemes adding up to eight years of stay in Hong Kong, 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.


Footnotes

1Eugene Chow is the principal of Chow King & Associates.

4Immigration Department Review 2018 (1 February 2019) https://www.immd.gov.hk/eng/press/press-releases/20190201.html.

5id.

6id.

7[1999] 1 HKC 291, 2 HKC far 4 (CFA 29 January 1999).

9Immigration Department Review 2018 (1 February 2019) https://www.immd.gov.hk/eng/press/press-releases/20190201.html.

10Immigration Department Review 2018 (1 February 2019) https://www.immd.gov.hk/eng/press/press-releases/20190201.html.

12Immigration Department Review 2018 (1 February 2019) https://www.immd.gov.hk/eng/press/press-releases/20190201.html.

13id.

15Immigration Department Review 2018 (1 February 2019) https://www.immd.gov.hk/eng/press/press-releases/20190201.html.

16id.

19Technology Talent Admission Scheme - Guide to Application https://www.itc.gov.hk/en/doc/techtas/TechTAS_Application_guide_Eng.pdf.

20id.

21Immigration Department Review 2018 (1 February 2019) https://www.immd.gov.hk/eng/press/press-releases/20190201.html.

26ID(E)1000; English version available at www.immd.gov.hk/pdforms/ID(E)1000.pdf.

27While 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.

28Immigration Department Review 2017 (13 February 2018) www.immd.gov.hk/eng/press/press-releases/20180213c.html.

29Immigration Department Review 2018 (1 February 2019) https://www.immd.gov.hk/eng/press/press-releases/20190201.html.

32id.

34Immigration Department Review 2018 (1 February 2019) https://www.immd.gov.hk/eng/press/press-releases/20190201.html.

35For 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.

38Immigration Department Review 2018 (1 February 2019) https://www.immd.gov.hk/eng/press/press-releases/20190201.html.