The Corporate Immigration Review: Hong Kong

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, staying 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 the technology talent admission scheme (TechTAS), a fast-track 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 artificial intelligence, biotechnology, cybersecurity, data analytics, financial technologies, material science, robotics, 5G communications, digital entertainment, green technology, integrated circuit design, the internet of things or microelectronics.3

Although not industry-sector specific, 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 (Advisory Committee) for recommendation of the allocation of the available quota based on Hong Kong's socioeconomic 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 22 January 2020, HKSAR passport holders may apply for an entry visa for a maximum stay of three months upon arriving in Kenya as a visitor. HKSAR passport holders may also apply for an online e-visa at immigration.ecitizen.go.ke for travelling to Kenya. As Kenya is along the Belt and Road, under the Belt and Road Initiative, this visa-on-arrival arrangement would bring greater travel convenience to HKSAR passport holders visiting Kenya and strengthen the tourism, cultural and economic ties between the two places.4

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, inter alia, residence permits or the right to work. However, in Ng Ka Ling v. Director Immigration,5 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.

The year in review

i Covid-19 restrictions on entry to the HKSAR

As the impact of the covid-19 outbreak continues to expand across the globe, international immigration lawyers find themselves in various stages of the crisis management lifecycle, having to advise clients and companies with business travel and immigration needs.

ii Non-Hong Kong residents barred from entry

Currently, all non-Hong Kong residents coming from overseas countries will be denied entry to Hong Kong. Non-Hong Kong residents coming from mainland China, Macao and Taiwan will also be denied entry to Hong Kong if they have been to any overseas countries and regions in the past 21 days.

Note, however, that in addition to permanent residents of Hong Kong, any foreign national holding a valid employment, dependent or student visa is considered a Hong Kong resident.

iii Compulsory quarantine

All Hong Kong residents who have been to any countries outside of China in the past 21 days are subject to compulsory quarantine in government-designated quarantine hotels for 21 days.

The legal basis for compulsory quarantine rests on the public health emergency grounds of the Prevention and Control of Disease Ordinance (Chapter 599). Under Section 8 of the Ordinance, the Chief Executive in Council may make regulations for the purpose of preventing, combating or alleviating the effects of the public health emergency and protecting public health.

Anyone who violates the quarantine requirement may face a maximum penalty of imprisonment for six months and a fine of HK$25,000 upon conviction.

Effective 25 December 2020, all persons who have stayed in the United Kingdom or South Africa for more than two hours on the day of boarding or during the 21 days before that day are not allowed to board for Hong Kong.

Effective 23 January 2021, all persons who have stayed in Brazil or Ireland for more than two hours on the day of boarding or during the 21 days before that day are not allowed to board for Hong Kong.

iv Impact on operations of the Hong Kong Immigration Department

In 2020, as a result of the covid-19 pandemic, the HKID closed a number of times under the government's directive to work from home, except for staff of departments providing emergency services and essential public services such as the urgent extension of visa applications and passport applications and renewals. During those times, routine services and applications were suspended, and while the HKID has reopened, new employment visa applications and applications for changes of employment sponsors and non-urgent applications for extensions of stay are likely to be delayed because of a backlog of existing applications and a large number of new applications.

With respect to extensions of stay, the HKID has a long-standing requirement that a Hong Kong visa holder must be in Hong Kong physically on the day a visa extension application is filed and on the day the visa extension label is collected. As many Hong Kong employment visa and other resident visa holders could not timely return to Hong Kong because of the covid-19 pandemic, the HKID issued a temporary policy on 31 December 31 2020 that if a visa holder is outside of Hong Kong and is unable to return, he or she may nevertheless submit a visa extension application together with the required supporting documents from outside of Hong Kong provided the visa is expiring within four months or has expired for less than one year.6

Such applicants are required to furnish a letter giving reasons for their inability to return to Hong Kong to timely file their applications. If their applications are approved, the visa holders will be issued with an entry permit for their return to Hong Kong within the validity of that entry permit. This policy does not, however, apply to foreign domestic helpers and imported workers.

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

  1. the general employment policy (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;7
  2. 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 current 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;8
  3. the immigration arrangements for non-local graduates (IANG), which is an employment visa category specifically tailored for non-local graduate applicants 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 without having an employer sponsor for the initial 12 months. 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 from a full-time non-local programme that has been accredited by Hong Kong;
  4. the training visa, which is applicable to both foreign national and Chinese national mainland resident applicants with lesser professional experience. This is an option 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;9 and
  5. 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 or Vietnam.10 The eligible sponsoring company must be engaged in the areas of artificial intelligence, biotechnology, cybersecurity, data analytics, financial technologies, material science, robotics, 5G communications, digital entertainment, green technology, integrated circuit design, the internet of things or microelectronics. The sponsoring company can be 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 the Hong Kong Cyberport Management Company Limited,11 or also a non-tenant so long as its business nature meets the specific industry requirements.12

The sponsoring company should first apply to the ITC for a quota. Once the quota application is approved, it can then submit an application to sponsor an eligible applicant to apply for an employment visa or entry permit to the HKID within the 12-month quota-validity period under TechTAS.

The TechTAS scheme requirements specify that the applicant must be employed as a full-time employee in Hong Kong by the sponsoring company; he or she must be engaged principally in conducting R&D work in the areas of artificial intelligence, biotechnology, cybersecurity, data analytics, financial technologies, material science, robotics, 5G communications, digital entertainment, green technology, integrated circuit design, the internet of things or microelectronics;13 and must be a degree holder in science, technology, engineering or mathematics (STEM) from a well-recognised university from among the top 100 universities for STEM-related subjects in the latest publication of world university ranking tables (including Quacquarelli Symonds, Academic Ranking of World Universities, also known as Shanghai Ranking (originally compiled and issued by Shanghai Jiao Tong University) and Times Higher Education); and offered remuneration not lower than the prevailing market level for comparable jobs in Hong Kong.14

Additionally, the sponsoring company must fulfil the ITC's requirement to employ a required number of new local employees in technology-related work. For every one to three non-local persons approved to be admitted by the HKID under TechTAS, the sponsoring company would need to employ one new local full-time employee who holds a bachelor's degree, or higher, on an employment contract for at least one year, plus two local interns who are undergraduates or higher, for an internship period of at least three months.15

iii 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. 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.

TechTAS is a fast-track scheme and 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 an 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.16

In general, both new hires and intra-company transferees should meet the GEP application criteria set out by the HKID,17 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 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 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),18 which is a specific Chinese travel document issued to Chinese nationals who are mainland residents for their travel to Hong Kong and Macao. 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.

iv 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 equivalent to a tertiary degree recognised internationally.

Apart from the mainstream employment categories such as the GEP, the ASMTP and 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.19

v 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 a 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 or 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 an HKSAR resident, employment visa holders or their dependants will usually have their cases approved in four to six weeks.

Investors, skilled migrants and entrepreneurs

Persons interested in the self-employment or unsponsored employment visa category may 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. A highly skilled or talented applicant can also apply for a visa under the QMAS or under the admission scheme for second generation of Chinese Hong Kong permanent residents (ASSG) without employment sponsorship and has the flexibility to set up his or her own self-employed business after the visa application is approved.

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 submission and eventual approval of this category of visa by the HKID are that the business in which the investor has invested must be already established at the time the application is submitted and must be of substantial benefit to the economy of the HKSAR.

The HKID has issued a Guidebook for Entry for Investment for Entrepreneurs.20 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 the 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 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,21 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.

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.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:

  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 (Putonghua or Cantonese) 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 general points test (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; a maximum of 20 points are awarded to those with a master's degree, or two or more bachelor's degrees; a maximum of 10 points are awarded to those with a bachelor's degree or a professional qualification awarded by a nationally or internationally recognised or acclaimed professional body that demonstrates that the holder has a very high level of technical expertise or skill; an additional 30 points will be allotted to qualifying applicants with bachelor's degrees or higher awarded by a designated renowned or internationally recognised institution;23
  3. work experience: maximum of 55 points, of which a maximum of 40 points are awarded to those with not less than 10 years' graduate or specialist-level work experience, including at least five years in a senior role; a maximum of 30 points are awarded to those with not less than five years' graduate or specialist-level work experience, including at least two years in a senior role; a maximum of five points are awarded to those with not less than two years' graduate or specialist-level work experience; 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;24
  4. the talent list: a maximum of 30 points will be granted to the applicant if he or she meets the specifications of the applicable 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 and transactional law;25
  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 having at least 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 degree level or higher, or the equivalent; and five points for each accompanying 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 an exceptional talent or skill and who have outstanding achievements. A person who applies under this test is either awarded a full score of 225 points or granted no points and refused immediately. To qualify, an applicant should meet the following criteria:26

  1. he or she must have received an award for exceptional achievement (e.g., Olympic medals, Nobel prize, national or international awards); or
  2. the applicant 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 socioeconomic 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 past years, 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.

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 employment 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.27

iii ASSG

The ASSG was launched in May 2015 as part of the HKID's efforts to attract and retain the 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.28 The following application criteria must be met under the ASSG:29

  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 educational 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.

Since the inception of this scheme, the majority of the approved applicants have been 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.

iv Visa extensions

To retain talent and professionals, the HKID has imposed a policy relaxing the initial duration of stay from one year to two years for a number of visa categories, including the GEP, the ASMTP, TechTAS and entrants admitted under the GPT of the QMAS, which has been much welcomed by businesses. 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.

Furthermore, a person who is on an employment visa under the GEP, the ASMTP or the GPT of the QMAS may be eligible for a six-year extension of stay under the top-tier employment stream if he or she earns a high salary (not less than HK$2 million per annum).

To qualify, the applicant must have been admitted under one of the above visa schemes 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 assessment; the applicant will be required to provide documentary proof of his or her income, such as his or her notices of salaries tax assessment for the previous tax assessment year issued by the Inland Revenue Department.

Once an applicant has successfully obtained a six-year extension under the top-tier employment stream, he or she is free to take up or change employment during his or her period of permitted stay without the need to obtain approval in advance from the Hong Kong Immigration Department. A top-tier employment stream visa holder need only notify the Immigration Department of the effective date of his or her change of employment, the name of the new employing company and the person's new post title within one month of the change.

This policy is designed to encourage top-tier entrants to pursue long-term careers and business development in Hong Kong and to provide an incentive for them to remain in Hong Kong in the long run.

Outlook and conclusions

To maintain Hong Kong's competitive edge and leading position as an international business and economic centre in the Asia-Pacific region, the 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 various policies on the relaxation of the initial duration of stay to two years for various schemes, including the GEP, ASMTP, TechTAS and entrants admitted under the GPT of the QMAS, the relaxation of extension of stay to a three-three-year extension pattern and the addition of the six-year visa extension under the top-tier employment stream permissible for qualified persons under the GEP, the ASMTP, TechTAS and the GPT of the QMAS have significant impacts on various fronts, as the lengthier visa extension available will impose less of a burden on entrants and their sponsoring companies, and on the HKID in terms of processing their visa extension applications. In adding up to eight years of stay in Hong Kong, the offering of a longer duration of stay in the visa approval period and the pattern of visa extensions in the above-mentioned schemes also facilitate entrants' applications for right of abode to become permanent residents of Hong Kong after seven years of ordinary residence here.

In sum, Hong Kong's immigration policy is open and flexible to attract highly skilled and talented people, and it is responsive to the economic conditions and labour needs of businesses while also aligning with the overall domestic legislation and policies that concern the demographics of Hong Kong.

Footnotes

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

5 [1999] 1 HKC 291, 2 HKC far 4 (CFA 29 January 1999).

14 id.

15 id.

21 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.

24 id.

27 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.

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