Hong Kong Immigration Lawyer – Right of Abode of Children Born to a Hong Kong Permanent Resident outside the Territary of Hong Kong SAR
As a Hong Kong solicitor practicing in the area of immigration issues, we often receive inquiries regarding the right of abode issues, such as, right of abode of children born in the Mainland China a Hong Kong permanent resident, right of abode of children born overseas to Hong Kong permanent resident, right of abode of a illegitimate child born ot a Hong Kong permanent resident, etc.
According to Article 24 of the Basic Law of HKSAR and Immigration Ordinance, if a Chinese citizen wants to obtain the permanent right of abode in HK, he/she has to meet one of the following conditions, namely he/she must be:-
(1) a Chinese citizen born in HK before or after the establishment of the HKSAR.
(2) a Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the HKSAR.
(3) a person of Chinese nationality born outside Hong Kong before or after the establishment of the HKSAR to a parent who, at the time of birth of that person, was a Chinese citizen falling within category (a) or (b).
In this article, I will introduce the laws and relevant procedures for the application of the right of abode in Hong Kong for those children born to a Hong Kong permanent resident outside Hong Kong.
A child born outside HK(not in the Mainland China): Verification of the Identity as a Hong Kong Permanent Resident
In procedure, any one who thinks that he/she has met one of the three conditions mentioned above and want to apply for recognition of his/her identity as a Hong Kong permanent resident, he/she has to apply for the verification of eligibility as a Hong Kong permanent resident according to the Registration of Persons Ordinance.
After the verification has been done and his eligibility as Hong Kong resident has been approved, one is eligible to apply for his/her identity documents, like a permanent identity card and/or a Hong Kong passport.
Please refer to the HK government website regarding verification of eligibility as a HK permanent resident for more information.
A child born to a HK permanent resident in the Mainland China: One-way Permit and a Certificate of Entitlement
Although the person who meets any one of the three conditions could be qualified as a Hong Kong permanent resident, a child born to a Hong Kong permanent resident in the Mainland China can not directly apply to verify the his identity as a Hong Kong permanent resident. This is because Article 22 of the Basic Law of Hong Kong provides that people from the Mainland China must apply to the Mainland Government for approval for entry into Hong Kong SAR.
Therefore, in practice, a child born to a Hong Kong permanent resident in the Mainland China have to apply to the Exit-Entry Administration Bureau of the Mainland China for a One-way Permit according to the laws and regulations of the Mainland China. Then the relevant authorities of the Bureau of the Mainland China will first review the application and then hand over relevant application materials of the applicant (the child born to a Hong Kong permanent resident in the Mainland China) to the Immigration Department of Hong Kong for verification of his/her identity as a Hong Kong permanent resident. Once the Immigration Department has verified that the applicant has met the above mentioned conditions, it will issue a Certificate of Entitlement and send it back to the Exit-Entry Administration Bureau of the Mainland China. The Certificate of Entitlement will then be affixed to the applicant’s One-way Permit issued by the Mainland China, and the Mainland Exit-Entry Administration Bureau then will issue the One-way Permit affixed with the Certificate of Entitlement to the Applicant for his/her enter into Hong Kong for settlement.
A child born to a resident of the Mainland China during her tourism stay or illegal stay in Hong Kong
Article 24(1) of the Basic Law provides that “A Chinese citizen born in Hong Kong before or after the establishment of the HKSAR” has the permanent right of abode in Hong Kong. There is no restriction that the parent’s stay in Hong Kong must be legal or the parent(s) must hold a long-term visa. In another word, as long as the child is a Chinese citizen and he was born in territory of Hong Kong SAR, he is a Hong Kong permanent resident. In Director of Immigration v. Chong Fung Yuen, the Court of Final Appeal of HKSAR confirmed this point.
The Right of Abode of a Child Illegitimatelyand Naturally born to a Hong Kong Permanent Resident outside Hong Kong
The case may be that a Hong Kong permanent resident did not go into a legal marriage with a resident of the Mainland China but they have given birth to a child in the Mainland China. Is such child eligible for the permanent right of abode in Hong Kong? In Ng Ka Ling v. Director of Immigration, the court has established that the illegitimate and natural child born to a Hong Kong permanent resident is eligible for the permanent right of abode in the same manner as a legitimate and natural child born to a Hong Kong permanent resident. Andrew Li, the Honorable judge pointed out that under the guidance of the International Covenant on Civil and Political Rights, the illegitimate and natural child enjoys equal rights with the legitimate and natural child, therefore, the right of abode referred in Article 24(3) of the Basic Law of Hong Kong is also applicable to the illegitimate and natural child.
The right of abode in Hong Kongof a child born in the Mainland China, whose parent hasn’t obtainedthe permanent right of abode in HK at the time of birth of the child
If at the time of a child’ birth in the Mainland China neither of his/her parents has obtained the permanent right of abode in Hong Kong, a question comes, i.e., after either or both the parent(s) has later met the condition of ordinarily residing in Hong Kong for not less than 7 years and became a permanent Hong Kong resident, would the then child be eligible for the permanent right of abode in Hong Kong? The answer is no.
Although Article 24(3) of the Basic Law of Hong Kong doesn’t clearly indicate that the birth of a child should be after the parent has already obtained the right of abode in Hong Kong at the time of the child’s birth, according to the Interpretation of the Hong Kong Basic Law by the Standing Committee of the National People’s Congress, only when the parent has met the condition stipulated in Article 24(1) or 24(2) to be qualified as a Hong Kong permanent resident at the time of birth of the child, can the child be eligible for the permanent right of abode in Hong Kong. Such Interpretation has been confirmed by the Court of Final Appeal of HKSAR in case of Lau Kong Yuen.
The right of abode in Hong Kongof a child born ourside Hong Kong to a parent who, is a Hong Kong permanent resident but hasn’t resided in HK for continuous 7 years at the time of birth of the child
Here goes the facts of the case: lady A is a Hong Kong permanent resident born in Hong Kong, she married a resident of the Mainland China and resides in the Mainland China thereafter, her daughter A1 was born in the Mainland China. When A1 was 20 years old, she applied to the authority of the Mainland China for One-way Permit and has obtained the Certificate of Entitlement (issued by the Hong Kong immigration Department) according to Article 24(3) of the Hong Kong Basic Law. After that she became a Hong Kong permanent resident. When A1 was 25 years old, she gave birth to her daughter A2 in the Mainland China, at which point of time, A1 hasn’t ordinarily resided in Hong Kong for over 7 years. The question is, is A2 entitled to the right of abode in Hong Kong SAR? The answer is negative. Because A1 hasn’t met any of the conditions stipulated in Article 24(1) or Article 24(2) of the Basic Law of Hong Kong, her daughter A2 could not obtain the right of abode according to Article 24(3). Only if at the time of A2’s birth in the Mainland China, A1 has already ordinarily resided in Hong Kong for not less than 7 years after she obtained her permanent right of abode in Hong Kong, can her daughter A2 obtain permanent right of abode in Hong Kong according to Article 24(3).
For issues regarding the application for permanent right of abode in Hong Kong, please feel free to contact our Hong Kong Immigration Team (Email: [email protected]) for a consultation.