Born Overseas to Hong Kong Parents: Am I (or my child) eligible for HK Permanent Residence or Passport?
Eligibility for Overseas Application for Permanent Identity Card
This question has previously been asked on numerous occasions. Child born overseas to parents who are holders of Hong Kong Permanent ID Cards (“HKPR”). Will the child be eligible for HKPR too?
The answer? It depends.
This is a rather complex area of administrative law, with an interplay of Hong Kong SAR’s Immigration Ordinance and China’s Nationality Law. Specifically, the Nationality Law of the People’s Republic of China was implemented in the HKSAR pursuant to Article 18 of and Annex III to the Basic Law and interpreted in accordance with the “Explanations of Some Questions by the Standing Committee of the National People’s Congress Concerning the Implementation of the Nationality Law of the People’s Republic of China in the HKSAR” (link).
This interpretation was adopted at the 19th Session meeting of the Standing Committee of the National People’s Congress at the 8th National People’s Congress on 15 May 1996.
In explaining this in the simplest possible way, a person is eligible for a permanent identity card concurrently with an overseas application for a HKSAR passport if they belong to one of the following categories:
(a) A Chinese citizen born in Hong Kong before or after the establishment of the HKSAR; or
(b) A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the HKSAR; or
(c) 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 his or her birth, was a Chinese citizen falling within category (a) or (b). Definition of ‘Chinese citizen’ is available through the following link: Nationality Law
Descendants of Hong Kong Permanent Residents
Under the Nationality Law of the People’s Republic of China, Hong Kong residents who are of Chinese descent and born in Chinese territories (including Hong Kong) are regarded as Chinese citizens.
Their citizenship is not affected by whether they hold, or have held, a Hong Kong British Dependent Territories citizen passport, British National (Overseas) passport, or any other foreign passport unless a declaration of change of nationality was reported to the Immigration Department.
Source: Immigration Department, Government of the Hong Kong Special Administrative Region
Settled Abroad or Ordinary Hong Kong Residents?
However, the above are not the only determination of one’s eligibility. The test further extends to assess whether the parents of the child in question are “settle abroad or ordinary Hong Kong residents. If you were born outside China (including Hong Kong), and if one or both of your parents were “settled abroad”, a term which has been judicially interpreted as not being subject to a limit of stay in another country (i.e. permanent residency or citizenship in another country), and, you obtained another nationality at birth, then, for the purposes of the Chinese Nationality Law, you are not considered as a “Chinese citizen” (see: Court of First Instance case HCAL103/2011 citing Cai Cheng and Xiao Yeung’s Interpretation of the Laws of the People’s Republic of China: Encyclopaedia of Decided Cases, 《中華人民共和國百法釋解案例全書》.
What are our Options then?
A large majority of Hong Kong descendants born abroad are in fact caught out under this section. If you or your child intends to return to Hong Kong or do so sometime in the future, there are options available:
a) You are under the age of 18
You may consider applying for a dependant visa via your parents. However, your sponsoring parent(s) will need to be in Hong Kong during the period of sponsorship, and you can do this up until you are 18 (for seven years before being eligible to apply for HKPR)
b) You are aged 18 or over
The Hong Kong Government introduced a scheme called “Admission Scheme for the Second Generation of Chinese Hong Kong Permanent Residents“. To be eligible, an applicant must generally meet the following:
- aged between 18 and 40 at the time of application; born overseas (i.e. not the Mainland, HKSAR, Macao SAR or Taiwan);
- have at least one parent who is holder of a valid Hong Kong Permanent Identity Card at the time of application and was a Chinese national who had settled overseas at the time of the applicant’s birth;
- have a good education background;
- proficient in written and spoken Chinese (Putonghua or Cantonese) or English; and
- have sufficient financial means and are able to meet the living expenses for their (including their dependants, if any) maintenance and accommodation in the HKSAR without recourse to public funds
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