Immigration and Nationality Law

Breaching conditions of stay in Hong Kong—whether by overstaying or working without permission—is a criminal offence punishable by fines and imprisonment. Sentencing depends on the length of overstay, presence of illegal work, and other aggravating or mitigating factors. Convictions usually result in removal from Hong Kong and denial of future entry.

‍

Overstaying

Overstaying is a breach of conditions of stay under the Immigration Ordinance (Cap. 115).

‍

Maximum penalty:

Section 41 – Fine up to HK$50,000 and imprisonment for up to 2 years.

‍

Working Without Permission

Taking up employment (paid or unpaid) without Immigration Department approval is also a breach of conditions of stay.

‍

Maximum penalty:

Section 41 – Fine up to HK$50,000 and imprisonment for up to 2 years.

If the person is an illegal immigrant or subject to removal/deportation orders, offences under s.38AA(1) may apply, with sentencing guidelines of around 15 months’ imprisonment for illegal work.

‍

What is a BNO Passport?

A British National (Overseas) passport is a travel document issued by the United Kingdom Government to Hong Kong residents who registered as British Nationals (Overseas) before the transfer of sovereignty on 1 July 1997.

‍

Legal Status of a BNO Passport

‍

1. Under Hong Kong and Chinese Law:

• BN(O) passports are regarded only as travel documents.
• BN(O) status does not confer Chinese nationality or the right of abode in Hong Kong.
• Holders are treated as Chinese nationals in Hong Kong if of Chinese descent, unless they have formally renounced Chinese nationality under the PRC Nationality Law.
• The PRC and HKSAR governments do not recognise BN(O) passports for entry into Mainland China or Hong Kong; holders must use a Hong Kong SAR passport or other recognised travel document.

‍

2. Under United Kingdom Law:

• BN(O) holders are regarded as British nationals but not British citizens.
• They are entitled to UK consular protection outside China.
• BN(O) holders can visit the UK without a visa (for limited periods) but do not have the right of abode in the UK.
• BN(O) status does not confer automatic eligibility to live or work in the UK, unless covered by later UK immigration schemes (e.g., BN(O) Visa route introduced in 2021).

‍

Children born outside Hong Kong to Hong Kong residents do automatically acquire Chinese nationality if at least one parent is a Chinese national and not settled abroad at the time of the child’s birth. If the parent(s) are settled abroad and the child acquires foreign nationality at birth, Chinese nationality will not be conferred.

‍

Under Nationality Law of the People’s Republic of China (1980):

• Article 5:

Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality.

‍

Exceptions:

• If both parents are Chinese nationals and have settled abroad, and the child acquires foreign nationality at birth, the child will not have Chinese nationality.
• If one parent is a Chinese national and has settled abroad, and the child acquires foreign nationality at birth, the child will not have Chinese nationality.

‍

Working in Hong Kong as a Foreigner

‍

Under Immigration Ordinance (Cap. 115), s.11, the Director of Immigration has discretion to grant permission to land and to impose conditions of stay. Regulation 2 of the Immigration Regulations prohibits visitors from taking up employment without prior approval.

‍

General Principles for Employment Visa Applications:

• The job should be specialist or senior in nature.
• There should be a genuine shortage of local candidates.
• The applicant should possess qualifications and experience relevant to the post.
• The sponsoring employer must be a lawfully registered business in Hong Kong and able to pay the employee’s salary.

‍

Application Process:

1. Employer Sponsorship:

Employer submits an employment visa application to the Immigration Department (Form ID 990A for employer, ID 990B for applicant).

‍

2. Supporting Documents:

Employment contract, business registration certificate, proof of financial standing of employer.

Applicant’s academic/professional qualifications, CV, passport copy.

‍

3. Approval & Conditions:

Visa is employer-specific; changing employers requires fresh approval.

‍

4. Special Schemes:

Quality Migrant Admission Scheme (no prior job offer needed, points-based).

Admission Scheme for Mainland Talents and Professionals.

‍

Settling in Hong Kong (Permanent Residence)

‍

Under Basic Law Article 24(2) and Immigration Ordinance (Cap. 115), Schedule 1, foreigners can acquire Hong Kong permanent resident status if they have:

• Ordinarily resided in Hong Kong for a continuous period of not less than 7 years; and
• Hong Kong as their place of habitual residence during that period.

‍

Application Process for Permanent Residence:

1. Eligibility Check:

Confirm 7 years’ continuous ordinary residence and no exclusion category applies.

‍

2. Submit Application:

Form ROP145 to the Immigration Department with proof of residence (tax returns, tenancy agreements, employment records).

‍

3. Verification:

Immigration Department verifies records and may request additional documents.

‍

4. Outcome:

Successful applicants receive a new Hong Kong permanent identity card.

‍

Loss of Chinese nationality is governed by the Nationality Law of the People’s Republic of China (1980), particularly Articles 9 and 10, as applied in Hong Kong under the NPCSC “Explanations”.

‍

Circumstances Leading to Loss of Chinese Nationality:

1. Voluntary Acquisition of Foreign Nationality after Settling Abroad

• Article 9:

Chinese nationals who have settled abroad and who have been naturalized as foreign nationals or have acquired foreign nationality of their own free will automatically lose Chinese nationality.

• “Settled abroad” means establishing a permanent home outside China.

‍

2. Formal Renunciation

• Article 10:

Chinese nationals who meet the requirements of the Nationality Law may apply to renounce Chinese nationality.

‍

• Application must be made to the Immigration Department (in Hong Kong) or the Ministry of Public Security (in Mainland China).

‍

• Approval is required before nationality is considered renounced.

‍

3. Special Hong Kong Arrangement

In Hong Kong, even if a Chinese national acquires foreign nationality, they remain Chinese for HKSAR legal purposes unless they apply to the Immigration Department to be recognised as a foreign citizen under Article 5 of the NPCSC “Explanations”.

Without such recognition, they continue to be treated as Chinese nationals in Hong Kong.

‍

The Hong Kong SAR passport is governed by the Hong Kong Special Administrative Region Passports Ordinance (Cap. 539) and issued by the Hong Kong Immigration Department.

‍

Eligibility:

You may apply if you meet all of the following:

1. Hong Kong permanent resident status.
2. Chinese citizenship under the Nationality Law of the PRC (as applied in Hong Kong).
3. Holding a valid Hong Kong permanent identity card.

‍

Application Process:

‍

1. Prepare Documents:

• Completed application form (ID 825 for adults / ID 825A for children).
• Hong Kong permanent identity card.
• Recent colour photograph meeting Immigration Department specifications.
• Proof of Chinese nationality (usually verified via your permanent ID card records).
• For children under 16, consent from a parent or guardian.

‍

2. Submit Application:

Apply in person at Immigration Department offices, by post, or online (for eligible applicants).

Applications from outside Hong Kong can be lodged at Chinese diplomatic and consular missions.

‍

3. Pay Fee:

Passport fee is payable at submission (current fees published on Immigration Department website).

‍

4. Processing Time:

Generally 10 working days for straightforward applications within Hong Kong.

Longer if applying from overseas or if nationality verification is required.

‍

The “seven years of ordinary residence” requirement is set out in Basic Law Article 24(2) and the Immigration Ordinance (Cap. 115). It applies to both Chinese and non-Chinese nationals seeking Hong Kong permanent resident (HKPR) status.

‍

Continuous Period of Seven Years

• The seven years must be immediately before the application for permanent residency 
• The period must be continuous, though temporary absences (holidays, short business trips, study abroad) do not break continuity if the person maintains Hong Kong as their place of habitual residence.

‍

Ordinary Residence

• Residence must be for a settled purpose such as employment, education, or running a business.
• Tourists, visitors, and certain categories (e.g., foreign domestic helpers, imported workers, Mainland officials) are excluded under Immigration Ordinance s.2(4).
• Periods spent in Hong Kong in contravention of conditions of stay (e.g., overstaying, working without permission) do not count.

‍

Objective Assessment

• Whether residence is “ordinary” is judged objectively from society’s perspective, not the applicant’s subjective view.

‍

Proof and Verification

Applicants must provide documentary proof (e.g., employment records, tax returns, tenancy agreements) to the Immigration Department for verification.

‍

‍General Rule:

Under Article 3 of the Nationality Law of the People’s Republic of China (1980), China does not recognise dual nationality for any Chinese national.

‍

Application in Hong Kong:

• Since 1 July 1997, the Nationality Law applies in Hong Kong, subject to the Standing Committee of the National People’s Congress (NPCSC) “Explanations” on its application in the HKSAR.
• A Hong Kong Chinese resident who acquires foreign nationality remains a Chinese national for Hong Kong legal purposes unless they formally apply to the Immigration Department to be recognised as a foreign citizen.
• Without such an application, they will still be treated as Chinese nationals in Hong Kong (e.g., eligible for HKSAR passports and home return permits), even if they hold a foreign passport.

‍

Key Points:

• No legal recognition of dual nationality — the law treats you as either Chinese or foreign, not both.
• Practical coexistence — in Hong Kong, many Chinese nationals hold foreign passports, but they are still regarded as Chinese citizens unless they opt out.
• Renunciation process — to be recognised solely as a foreign citizen, you must apply under Article 5 of the NPCSC “Explanations” and obtain formal approval.

‍

Legal Framework:

The Nationality Law of the People’s Republic of China (1980) has applied in Hong Kong since 1 July 1997, as stipulated in the Basic Law and the relevant NPCSC “Explanations” on its application in the HKSAR.

‍

Key Principles of Application in Hong Kong:

‍

1. Chinese Nationality by Descent (Jus Sanguinis):

• A person is a Chinese national if at least one parent is a Chinese national, regardless of place of birth.
• Exceptions apply if the parent(s) have settled abroad and the child acquires foreign nationality at birth.

‍

2. No Recognition of Dual Nationality:

• Article 3 of the Nationality Law states China does not recognise dual nationality.
• In Hong Kong, Chinese nationals who acquire foreign nationality remain Chinese nationals unless they formally apply to be recognised as foreign citizens under the NPCSC “Explanations” and Immigration Department procedures.

‍

3. Loss and Renunciation:

• Chinese nationals who settle abroad and voluntarily acquire foreign nationality automatically lose Chinese nationality (Article 9).
• Renunciation is possible under Article 10, with approval from the Immigration Department in Hong Kong.

‍

4. Naturalisation:

• Foreigners may apply for Chinese nationality if they have close relatives who are Chinese nationals, have settled in China (including Hong Kong), or have legitimate reasons.
• Successful applicants must renounce their original nationality.

‍

5. Special Hong Kong Arrangements:

The NPCSC “Explanations” allow Hong Kong Chinese nationals with foreign passports to still be treated as Chinese nationals for certain purposes (e.g., HKSAR passports, home return permits) unless they opt out.

‍

Legal Definition:

Under Basic Law Article 24, Hong Kong Permanent Residents (HKPRs) are defined in specific categories, including:

• Chinese citizens born in Hong Kong.
• Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years.
• Persons of Chinese nationality born outside Hong Kong to parents who are Chinese citizens and Hong Kong permanent residents.
• Non-Chinese nationals who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years, and have taken Hong Kong as their place of permanent residence.
• Persons under 21 born in Hong Kong to the above residents.
• Persons who had the right of abode only in Hong Kong before the establishment of the HKSAR.

‍

Eligibility Requirements:

• Ordinary residence in Hong Kong for at least seven continuous years (excluding tourists and certain exempted categories under Immigration Ordinance Section 2(4)).
• Proof of settled purpose during the residence period (e.g., employment, education, business).
• Verification of eligibility by the Immigration Department, which may require documentary proof such as identity card records, tax receipts, or tenancy agreements.
• Mainland Chinese citizens qualifying by descent must also obtain a Certificate of Entitlement and a One-way Permit before settling in Hong Kong.

‍