Citizenship Through Naturalisation and Applying For a Hong Kong SAR Passport

Citizenship Through Naturalisation and Applying For a Hong Kong SAR Passport

Citizenship Through Naturalisation and Applying For a Hong Kong SAR Passport 800 600 Adam Hugill
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One of the most common questions we get from our clients is: Why should I get a HKSAR Passport?

 

A Hong Kong Special Administrative Region (“HKSAR“) passport provides access to around 168 countries and territories worldwide without the need for a visa and has a power ranking of 13 out of possible 90 when ranked worldwide (according to Aton Capital’s Passport Index).

Aside from the travel benefits of applying for HKSAR passports there may be substantial tax benefits. Hong Kong has notoriously low tax compared to other countries worldwide and swapping your nationality to a HKSAR citizen may save you a lot of money.

Naturally, many people seek to become Hong Kong nationals and get a HKSAR passport. According to the Hong Kong Immigration Department’s website, there are around 60,000~70,000 HKSAR passport applications yearly.

Am I eligible for a HKSAR passport?

Well first of you need to ensure that you fulfil the correct criteria:

  • A permanent resident of the HKSAR
  • Hold a valid HKSAR permanent identity card
  • A Chinese citizen
Am I Permanent Resident of HKSAR?

To answer this question, the laws of HKSAR should be examined.

Under paragraph 2 of schedule 1 of the Immigration Ordinance, Cap 115 there are 6 categories of people that have the right to abode in HKSAR. These can be generally summarised as follows:

Chinese citizens:

  1. Chinese citizens who were born in Hong Kong.
  2. Chinese citizens who were born outside Hong Kong but who are lawfully permitted to live in Hong Kong and have done so for 7 years.
  3. Chinese citizens who were born outside Hong Kong to a parent who, at the time of birth, was already a Hong Kong permanent resident.

Non- Chinese citizens:

  1. Foreigners who have lived in Hong Kong lawfully for 7 years and have taken Hong Kong as their permanent place of residence, providing they have abided by the conditions under Article 24 of the Basic Law (e.g. paid all their taxes).
  2. Foreigners under the age of 21 who were born in Hong Kong to a parent who is a permanent resident as defined in category 4. On reaching the age of 21, these persons will cease to be permanent residents but can apply for it under one of the above categories.
  3. Persons who had no right of abode anywhere other than Hong Kong before the establishment of the HKSAR.

To be a permanent resident you need to be a Chinese citizen or fall under categories 4-6. However permanent residency alone does not allow you to apply for a HKSAR passport. You also need to be a Chinese citizen.

Who is classified as a Chinese citizen?

A Chinese citizen is a person of Chinese nationality under the Nationality Law of the People’s Republic of China (“CNL”), implemented in HKSAR pursuant to the Basic Law. If you are a foreign permanent resident of HKSAR, you will need to obtain Chinese citizenship in order to get a HKSAR passport.

This involves naturalising as a Chinese citizen. Becoming a Chinese citizen should be carefully considered as it will involve relinquishing your current citizenship. This can have some serious consequences.

Is relinquishing my citizenship worth it?

Taking the United States of America (U.S.) as an example, you will lose the following: the right to vote in elections; visa free access to many countries worldwide; government defence; support while travelling overseas; citizenship for children born abroad; access to federal jobs; and freedom of entry/ exit to and from the country. Despite this, since 2016 around 4,000 – 5,500 U.S. citizens have renounced their citizenship yearly. Tax considerations would be paramount.

U.S. citizens are obliged to pay their U.S. taxes even if living overseas. New Tax Laws including the Foreign Account Tax Compliance Act (“FATCA“) introduced stricter tax reporting rules and failing to meet these requirements can lead to serious financial and criminal penalties. As a Hong Kong resident, a significant benefit of relinquishing a U.S. passport is that one will no longer be doubled taxed and have to adhere to the U.S. tax rules.

An important point to note is that the process of relinquishing citizenship will likely be a lengthy process and possibly expensive. Continuing with the U.S. example, there is paperwork and interviews involved, plus fees of US$2,350 and possibly a requirement to pay an “exit tax”.

The advantages of relinquishing another countries’ passport for a HKSAR passport may outweigh the disadvantages and this may not necessarily be for tax reasons. It might simply be that HKSAR is the only place you call home and you want to cement this with a passport. Either way if you are determined to secure a HKSAR passport, acquiring Chinese citizenship may not be as hard as you think.

This is because becoming Chinese citizen does not require to be ethnically Chinese and, broadly speaking, just requires you to have some sort of connection with China.

Am I eligible to become Chinese citizen?

Section 7 of the CNL provides three possible routes for all non-Chinese person to acquire Chinese citizenship. These are: if you have a close Chinese relative; you are a long-term resident of China (which includes Hong Kong); other relevant circumstances. Relevant circumstances can come in many forms, such as owning a business/property in Hong Kong or Mainland China, being married to someone of Chinese ethnicity, being able to speak the Chinese language and more.

However, there have been cases where non-ethnic Chinese people have not managed to gain Chinese citizenship. In theory only one of section 7’s criteria need to be fulfilled, but in practice the Immigration Department will look to fulfil more than one.

Many failed naturalisations have involved an ethnic minority who grew up in Hong Kong and considered themselves to be a ’Hong Konger’, yet their application was denied.

According to the Hong Kong Immigration Department’s website, each application for Chinese naturalisation will be considered on its merits, but in general they will consider the following:

  1. whether you have a near relative who is a Chinese national with the right of abode in Hong Kong
  2. whether you have the right of abode in Hong Kong
  3. whether your habitual residence is in Hong Kong
  4. whether the principal members of your family (spouse and minor children) are in Hong Kong
  5. whether you have a reasonable income to support yourself and your family
  6. whether you have paid taxes in accordance with the law
  7. whether you are of good character and sound mind
  8. whether you have sufficient knowledge of the Chinese language
  9. whether you intend to continue to live in Hong Kong in case your naturalisation application is approved
  10. whether there are other legitimate reasons to support your application

Rejected cases have been based on failing to fulfil a combination of this criteria with one of the most common reasons being the first criterion above. There have been cases where a rejected application on this basis has been reversed because of racial discrimination under the Race Discrimination Ordinance, Cap 602.

If there are concerns over any of these criteria when applying for Chinese naturalisation, the help and guidance of a knowledgeable immigration solicitor would be well advised.

Will I become stateless?

When switching from your current nationality to a Chinese national, you may be worried about the cross-over period. Will there be a period in which you are stateless and in limbo between two nationalities? The answer should be no. Both your current national consulate and the Hong Kong Immigration Department should work together to ensure this doesn’t happen. Problems in the transition are uncommon but guidance to ensure a smooth transition can be sought if necessary.

How should I apply for my HKSAR passport?

One of the reasons why many passport applications have failed is because the applicants have not followed the proper procedures. The following steps should be taken, in this order, should you want to be successful:

  • Complete the relevant Chinese naturalisation form found on the Immigration Department’s website and submit with an initial fee of HK$1,730.
  • If approved the Immigration Department will issue a letter stating that your application will be approved and another HK$1,730 must be paid.
  • It is at this point you will have to revoke your current citizenship and provide proof of this to the Immigration Department.
  • Once this evidence is submitted; you will receive a Certificate of Naturalisation.
  • Once your Chinese citizenship is granted through this Certificate, you must apply for an amended identity card (with the three stars!).
  • You now have an automatic right to obtain a HKSAR passport and simply need to apply for one by filling out the correct application form on the Immigration Department’s website and paying the required fee.
Our Take

Attaining a HKSAR passport can be reasonably simple, but it can also involve complications. When questions or difficulties occur, it can be stressful and confusing. Whether it’s tax complications, transition problems, application concerns – if you have immigration problems our solicitors are here to help.

Hugill & Ip provides immigration help to numerous clients and has invaluable expertise that will help gain the result you want.

 

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.

 

Adam Hugill

Adam Hugill

Adam advises on a wide range of contentious and non-contentious legal and commercial issues, with a special emphasis on employment law in Hong Kong and the Asia Pacific region.

All articles by : Adam Hugill
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