ROA Appeal Questions

[big_panda]

I'm in a very similar situation with RTL: non-Chinese ROA to RTL downgrade in 1999; Submitted an Appeal to the ROPT in late 2015; Immigration Department released their response to the Appeal in early 2018; now proceeding to Tribunal.

The Department indicated in 2016 they would - cough cough - overlook 7 years; and can we give you a non-Chinese ROA right now, but I've left it at RTL and decided to proceed to Tribunal, as I would also quite like an HKSAR Passport and HRP.

On what basis are you entitled to a HKSAR Passport/HRP? Did you give up your foreign nationality?

[dossier]

On what basis are you entitled to a HKSAR Passport/HRP? Did you give up your foreign nationality?

On the basis of the 2009 Notice: https://geoexpat.com/forum/54/thread310005-7.html Issued by the Overseas Chinese Affairs Office of the State Council on the Definition of Overseas Chinese, Foreign National Chinese, Returned Overseas Chinese and Relatives of Overseas Chinese status provision (Guo Qiao Fa [2009] No 5) (‘2009 Notice’) issued on 29 April 2009. This came to light from http://www.scmp.com/news/hong-kong/a...t-abode-ruling

Also via the Hong Kong Chinese Compatriot route, but that has since been re-tested in the High Court, and isn't looking so promising. http://www.scmp.com/news/hong-kong/l...n-acquire-hong

[dossier]

*Double post deleted*

[dossier]

Hello Dossier,

So they didn't reply to your appeal until 4 years later? Would you mind telling me the details of your appeal? And what reason(s)/evidence you're considering giving?

Would you be able to explain more about what you mean in 2016 they overlooked the 7 year stay?

I am currently considering reapplying in person for the permanent HKID eligibility, and then appealing their decision if I don't get ROA with the evidence I had mentioned earlier.

In brief, I'm a UK born British Citizen. Held ROA as a Child HKPIC before 1997. Immd deems my parents "settled abroad" under CNL 5. Lost ROA in 1999 due to the 36 month rule. Accepted RTL in 2009. VEPIC in 2009, 2012, 2014, 2015. Finally got around to submitting an ROPT Appeal within 90 days in 2015. Because of the length and complexity of my arguments, including citations of Notices from Central Government relevant to the implementation of CNL (notably the 2009 notice), it has taken Immd a long time. I asked for a VEPIC reconsideration in 2015 that completed in late 2016. Immd then spent 6 months drafting a SOF for the ROPT and the DOJ took 1 year to review the Immd's SOF before release. I'm now onto a future hearing for the ROPT. I can only speculate the DOJ had to consult Central Government through whatever mechanism is used (the Liaision office?). I speculate there is an inherent conflict between the way the PRC applies CNL and the way the HKSAR applies CNL. Theoretically, the SAR must "do what it is told" in relation to CNL.

This could get quite interesting - like the famous "Surinder Singh" route in UK Immigration - although I'd rather not have the whole thing named after me!

Re "Would you be able to explain more about what you mean in 2016 they overlooked the 7 year stay? " I think the Immd may have been hoping I would quietly "go away" if they gave me non-Chinese ROA HKPIC (without an HKSAR Passport and HRP). There were a few discussions attempting to convince me that the HKSAR Passport isn't particularly good anyway, and why care if you have a BC Passport.

[dossier]

Original Post Deleted

Alternatively, there is the renouncing British Citizenship, take HKSAR Citizenship, and restore British Citizenship route (permissibly only once). Precedent seems to be pretty silent on what then happens under CNL. It may actually be the more practical permissible route to dual.

[dossier]

Hello Dossier,

So they didn't reply to your appeal until 4 years later? Would you mind telling me the details of your appeal? And what reason(s)/evidence you're considering giving?

Would you be able to explain more about what you mean in 2016 they overlooked the 7 year stay?

I am currently considering reapplying in person for the permanent HKID eligibility, and then appealing their decision if I don't get ROA with the evidence I had mentioned earlier.

My appeal has several grounds: for non-Chinese ROA (under the 1997 transitional arrangements) and Chinese ROA (under CNL). The non-Chinese ROA transitional arrangements may interest you: basically it comes down to the common-law definition of "ordinarily resident" which is - at least from what I have read - mostly in English case law. I was a student outside HK during the 1997 period, so assert "ordinarily resident" in two places at the same time - which is established in English case law. it's a valid argument under Hong Kong common law.

[kma88]

When you said ImmD was willing to give you RoA based on having RTL for 7 years, how often were you in HK during this time. Did you visit once every year or so?

I have a sense that ImmD is very lenient on the interpretation of 7 years ordinary residence when granting RoA. I know of a case where the applicant was physically in HK for a total of only 2 years and got it. However when it comes to Chinese nationality, I think they are very strict.

[emx]

And if you lose the appeal?

The pain free ROA offer in 2016 would have been a safer bet.

[big_panda]

I think you're going to have difficulties advancing your argument - seems quite clear in the Tim Loh judgement, you were born in the UK and folks settled abroad. You will need to seek your path to a HK Passport by way of naturalising as a Chinese citizen. Personally I wouldn't want to advance it to a hearing, since if you are not successful, a costs order will be levied against you. Tim Loh as the losing side had to pay 85% of the costs of Senior Counsel.....Is the HK Passport worth that much to you? If so, give up your British Passport, and get it back later.

[emx]

Personally I wouldn't want to advance it to a hearing, since if you are not successful, a costs order will be levied against you.

Exactly!