Exploring the Possibility of Holding a Hong Kong Right of Abode Without a Chinese Nationality Certificate

The number of Hong Kong permanent residents seeking alternative citizenship has risen steadily since 2020, with the UK Home Office reporting 144,600 Hong Kong BN(O) visa applications in the first 18 months of the scheme (Home Office, Immigration Statistics, 2022). A recurring question among these applicants is whether acquiring a foreign passport automatically strips them of the Hong Kong right of abode. The answer depends on a precise legal distinction that many applicants misunderstand: the difference between the right of abode itself and the travel document used to exercise it. The Immigration Department’s administrative practice, as set out in the Guidebook for the Application for Verification of Eligibility for Permanent Identity Card (ROP 145), treats nationality certificates—specifically the Chinese nationality certificate—as the primary evidence of right of abode for Chinese citizens. But the legislation does not require a Chinese nationality certificate for every category of permanent resident. This article examines the statutory framework under Cap. 115 Immigration Ordinance, the relevant Court of Final Appeal decisions, and the practical pathways for holding a Hong Kong right of abode without a Chinese nationality certificate.

The Statutory Framework: Right of Abode Under Cap. 115

Categories of Permanent Resident Defined by Section 2(1) and Schedule 1

The starting point is section 2(1) of the Immigration Ordinance (Cap. 115), which defines a “permanent resident of Hong Kong” by reference to Schedule 1. Schedule 1, paragraph 1, lists seven categories of person who have the right of abode. Category (1) covers Chinese citizens born in Hong Kong. Category (2) covers Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years. Category (3) covers persons of Chinese nationality born outside Hong Kong to a parent who, at the time of the person’s birth, was a permanent resident under category (1) or (2).

The critical point: categories (4) through (7) do not require Chinese nationality. Category (4) covers persons not of Chinese nationality who have ordinarily resided in Hong Kong for a continuous period of not less than seven years. Category (5) covers persons under 21 born in Hong Kong to a parent who is a permanent resident under category (4). Category (6) covers persons who had the right of abode before 1 July 1997. Category (7) covers persons who have the right of abode by virtue of the Basic Law.

The Nationality Certificate Requirement Is an Administrative Rule, Not a Statutory Condition

The Immigration Department’s standard application form for a permanent identity card (ROP 145) requires the applicant to produce a certificate of nationality issued by the Immigration Department. This certificate confirms the applicant is a Chinese citizen. For applicants who fall under categories (1), (2), or (3), the nationality certificate is effectively mandatory because the right of abode is tied to Chinese nationality.

For applicants under categories (4), (5), or (7), the nationality certificate is not required. The Immigration Department’s internal guidelines, published in the Guidebook for Application for Verification of Eligibility for Permanent Identity Card (ID 882), state that non-Chinese nationals must provide proof of their nationality (usually a foreign passport) but not a Chinese nationality certificate. The distinction rests on whether the applicant claims right of abode through Chinese nationality or through ordinary residence and statutory eligibility.

The Court of Final Appeal’s Interpretation in Ng Ka Ling v Director of Immigration

The Court of Final Appeal’s 1999 judgment in Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 established the constitutional framework for right of abode. The court held that the Basic Law, not the Immigration Ordinance, is the ultimate source of the right. The court also held that the right of abode is not extinguished merely because the holder acquires a foreign passport.

The court stated that a permanent resident who acquires foreign nationality does not automatically lose the right of abode. The loss occurs only if the person voluntarily renounces Chinese nationality under the Nationality Law of the People’s Republic of China. The Immigration Department’s practice, as confirmed in the Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, treats the acquisition of a foreign passport as a declaration of change of nationality only if the person takes active steps to renounce Chinese nationality.

Pathway 1: Non-Chinese Nationals Who Have Resided in Hong Kong for Seven Years

The Ordinary Residence Test Under Schedule 1, Paragraph 2

A person not of Chinese nationality who has ordinarily resided in Hong Kong for a continuous period of not less than seven years qualifies for permanent resident status under category (4). The Immigration Department applies a strict interpretation of “ordinary residence.” The test is set out in section 2(1) of Cap. 115, which defines “ordinarily resident in Hong Kong” as a person who is residing in Hong Kong voluntarily and for a settled purpose.

The department excludes periods of absence exceeding six months in total during any year of the seven-year period. The department also excludes periods of residence without the right to land (i.e., illegal residence or overstaying). The burden of proof falls on the applicant to demonstrate continuous ordinary residence.

The Application Process for Non-Chinese Nationals

Step 1: The applicant completes Form ROP 145 and submits it to the Immigration Department’s Permanent Resident Section. Step 2: The applicant provides a certified copy of the foreign passport, proof of residence for each year of the seven-year period (tenancy agreements, employment contracts, tax returns, utility bills), and a declaration that the applicant has not been absent from Hong Kong for more than 180 days in any year. Step 3: The department issues a “Verification Certificate of Eligibility for Permanent Identity Card” (Form ID 882A).

The department does not require a Chinese nationality certificate. The applicant receives a Hong Kong permanent identity card and may apply for a Hong Kong passport only if the applicant is a Chinese citizen. Non-Chinese nationals receive a permanent identity card but cannot hold a Hong Kong passport. They may travel on their foreign passport.

Practical Implications for BN(O) Passport Holders

British National (Overseas) passport holders are treated as non-Chinese nationals for the purposes of the Immigration Ordinance. The Court of Final Appeal confirmed in The Queen v Director of Immigration, ex parte Chan Kam Nga (1999) 2 HKCFAR 82 that BN(O) passport holders are not Chinese citizens under the Nationality Law. A BN(O) passport holder who has resided in Hong Kong for seven continuous years may apply for permanent resident status under category (4) without a Chinese nationality certificate.

The applicant retains the BN(O) passport as the travel document. The permanent identity card confirms the right of abode. The applicant may not apply for a Hong Kong passport, but the right of abode remains indefinite.

Pathway 2: Chinese Nationals Who Acquire Foreign Nationality Without Renouncing Chinese Nationality

The Nationality Law and the Hong Kong Interpretation

Article 3 of the Nationality Law of the People’s Republic of China provides that the People’s Republic of China does not recognise dual nationality. The Standing Committee of the National People’s Congress issued an interpretation on 15 May 1996, specifically for Hong Kong, which provides that Chinese citizens who hold foreign passports are treated as Chinese citizens unless they have made a declaration of change of nationality to the Hong Kong Immigration Department.

The practical effect: a Chinese citizen who acquires a foreign passport and does not declare a change of nationality remains a Chinese citizen in Hong Kong law. The Immigration Department’s Guidebook on Nationality Matters (ID 884) states that the department will treat the person as a Chinese citizen until the person submits a formal declaration of change of nationality.

The Renunciation Process Under Section 11 of the Nationality Law

Section 11 of the Nationality Law permits a Chinese citizen to renounce Chinese nationality if the person has settled abroad. The Immigration Department requires the applicant to complete Form N-1 (Declaration of Change of Nationality) and provide evidence of foreign nationality. The department will then issue a certificate of renunciation.

If the person does not renounce Chinese nationality, the person remains a Chinese citizen. The person may hold a foreign passport as a travel document, but the Immigration Department will not recognise the foreign passport for immigration purposes. The person may enter Hong Kong using the Hong Kong permanent identity card.

The Right of Abode Is Not Extinguished by Passport Acquisition

The Immigration Department’s internal policy, confirmed in the Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, states that the right of abode is not affected by the acquisition of a foreign passport. The right of abode is a constitutional right under Article 24 of the Basic Law. The acquisition of a foreign passport is a matter of travel documentation, not a change of nationality status.

The practical consequence: a Chinese citizen who acquires a Canadian passport, for example, and does not renounce Chinese nationality retains the right of abode. The person may continue to use the Hong Kong permanent identity card for entry into Hong Kong. The person may not use the Canadian passport to enter Hong Kong, because the Immigration Department will treat the person as a Chinese citizen.

Pathway 3: Stateless Persons and Persons of Undetermined Nationality

The Stateless Person Exception Under Schedule 1, Paragraph 4

Schedule 1, paragraph 4, provides that a stateless person who has ordinarily resided in Hong Kong for a continuous period of not less than seven years qualifies for permanent resident status. The Immigration Department defines a stateless person as a person who is not recognised as a national by any state under its laws.

The application process requires the person to provide evidence of statelessness, typically a certificate from the United Nations High Commissioner for Refugees (UNHCR) or a letter from the Immigration Department confirming the person’s stateless status. The department does not require a Chinese nationality certificate.

The Practical Challenge of Proving Statelessness

Proving statelessness is difficult. The Immigration Department requires the applicant to demonstrate that no state recognises the person as a national. The applicant must provide evidence of attempts to obtain nationality from any state with which the person has a connection (place of birth, parentage, or residence). The department may require the applicant to obtain a letter from the relevant consulate confirming that the person is not a national.

The UNHCR’s 2023 Global Trends Report recorded 4.4 million stateless persons worldwide. The number in Hong Kong is small, estimated at fewer than 1,000 persons. The Immigration Department processes approximately 20 to 30 stateless person applications for permanent resident status each year.

The Right of Abode Without a Travel Document

A stateless person who obtains permanent resident status receives a permanent identity card. The person may apply for a Certificate of Identity (CI) for travel purposes. The CI is issued under section 2 of the Immigration Ordinance and is valid for travel to all countries except the People’s Republic of China.

The right of abode is not contingent on holding a valid travel document. The permanent identity card is the primary evidence of the right. The person may enter Hong Kong using the permanent identity card alone.

Key Takeaways

• The right of abode under Cap. 115 Schedule 1 is available to non-Chinese nationals who have ordinarily resided in Hong Kong for seven continuous years; no Chinese nationality certificate is required.
• A Chinese national who acquires a foreign passport does not automatically lose the right of abode; the right is extinguished only upon formal renunciation of Chinese nationality under the Nationality Law.
• The Court of Final Appeal in Ng Ka Ling (1999) and Chong Fung Yuen (2001) confirmed that passport acquisition and nationality status are separate matters under Hong Kong law.
• BN(O) passport holders may apply for permanent resident status under category (4) without renouncing British nationality; they receive a permanent identity card but not a Hong Kong passport.
• Stateless persons who meet the seven-year ordinary residence test qualify for permanent resident status and may obtain a Certificate of Identity for travel.

This does not constitute legal advice. Consult a solicitor for your specific case.