By Chow King & Associates

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

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.

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.