Right of Abode vs. Right to Land

Right of Abode vs. Right to Land

Right of Abode vs. Right to Land 598 417 Matthew Love

One of the most frequently asked questions related to Hong Kong’s immigration laws is the difference between and meaning of the Right of Abode and the Right to Land. As the differences between the two statuses are not obvious on their face, those thinking about immigrating to Hong Kong should understand the rights afforded by each status before starting the visa application process.

Differences between the two rights

Under the Hong Kong Immigration Ordinance (Cap. 115), the Right of Abode is afforded to those who are permanent residents of Hong Kong. Those with the Right of Abode enjoy the right to land in Hong Kong, to be free from any condition of stay, and cannot be deported and/or removed from Hong Kong. In addition to these rights, those with the Right of Abode can vote and stand for elections and are not required to pay the Buyer’s Stamp Duty when acquiring property in Hong Kong – rights not afforded to those with only the Right to Land.

While somewhat similar to the Right of Abode, the rights afforded by the Right to Land are not on the same level as those available with the Right of Abode. For example, those who only have the Right to Land do not enjoy the same political rights and access to government benefits as those with the Right of Abode. Also, unlike the Right of Abode, those with only the Right to Land can be deported from Hong Kong if they have been convicted of a crime that is punishable by 2 or more years’ imprisonment.

Issues involving children

Children automatically acquire the Right of Abode if they are (1) born in Hong Kong to permanent resident parents; or (2) Chinese nationals born in Hong Kong to one permanent resident parent; or (3) Chinese nationals born in Hong Kong to Chinese national parents – both of whom are not Hong Kong permanent residents. In such circumstances, the Right of Abode is automatically granted to them when they are born. Those who don’t fall into one of these categories can still apply for the Right of Abode, in other words, for the right to become a permanent resident, if they can demonstrate they have resided in Hong Kong for at least 7 continuous years. However, there are different rules that apply to this 7 year residency requirement depending on whether you are a Chinese national.

How to qualify for the Right of Abode?

Chinese nationals are qualified to apply for the Right of Abode if they can show they have ordinarily resided in Hong Kong for a continuous period of at least 7 years before or after the establishment of the HKSAR. On the other hand, non-Chinese nationals are required to have ordinarily resided in the territory for a continuous period of at least 7 years immediately before the date when they apply to the Director of Immigration for the Right of Abode status under this category.

Could you lose your Right of Abode?

A person is considered to have ordinary residence in Hong Kong if they remain in Hong Kong legally, voluntarily and for a settled purpose (such as for education, employment or residence), whether of short or long duration. That status does not change even if they are temporarily absent from Hong Kong. Particularly noteworthy is the fact that domestic helpers and contract workers who originate from overseas but who are residing and working in Hong Kong under the government importation of labour scheme are not treated as having ordinary residence in Hong Kong.

Furthermore, only non-Chinese nationals will lose their Right of Abode if they have remained absent from Hong Kong for a continuous period of at least 36 months. In such circumstances, their Right of Abode will be automatically downgraded to the Right to Land.

 

Our team at Hugill & Ip has extensive experience in dealing with Immigration issues – so if you need further advice on this subject, get in touch with us.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

Matthew Love

Matthew Love

Matthew is a foreign legal consultant, with a focus on alternative dispute resolution, employment, and family law matters.

All articles by : Matthew Love
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