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SCMP Reporter

IF the common law was the only guide, a typical hearing for an application for permanent residency after 1997 could include the following exchange:   'Do you want to live in Hong Kong until you die?' asks the immigration officer presiding over the application.

  'Yes,' replies the applicant, knowing that this is the answer to give to be considered a permanent resident of the Hong Kong Special Administrative Region with right of abode in the territory.

  Never mind that he has no idea what his plan might be a few years down the road, because what matters is his intention to live here when he says yes.

  For in a 1952 case, a British court ruled that taking up 'permanent residence' in England meant 'residing in England with the intention of continuing to reside there until you die'.

  Sibyl Marion Geraldine Gape had died, leaving a will stipulating that the beneficiaries of her estate shall 'take up permanent residence in England'.

  Since it could not be clearly established when the beneficiaries would breach such a condition, the trustee of her estate sought a judicial ruling.

  The court held that taking up permanent residence in England was another way of saying 'making England your home', or 'residing in England with the intention of continuing to reside there until you die'.

  Unfortunately, the court did not rule on when the condition would be deemed as being breached, because for the purpose of interpreting a will, the term 'permanent residence' was clear enough to make it valid.

  Had the court been more assertive, a set of guidelines might have been available to help British and Chinese officials hammer out the criteria of conferring permanent residency right to foreign nationals after 1997.

  The subject is being discussed by the Sino-British Joint Liaison Group because the term 'permanent resident' is defined differently in the existing Immigration Ordinance and the Basic Law.

  At issue is a section of Article 24 of the Basic Law, which provides that the SAR's permanent residents include foreign nationals who '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 before or after the establishment of the Hong Kong Special Administrative Region'.

  Although the language of this clause seems clear enough, it is difficult to prove you intend to continue to reside in Hong Kong until you die.

  As Mr Justice Keith noted in his recent ruling on the Association of Expatriate Civil Servants' suit against the Government's localisation policy, in which the Gape case was cited, 'the common law test [of permanent residence] will be difficult to operate in practice'.

  'A judgment would have to be made in every case of what the person's future intention was,' he said.

  'A self-serving declaration by the person concerned that he intends to reside in Hong Kong would not carry much weight when it is in his interests to make a statement to that effect.'   Be that as it may, the Preliminary Working Committee advising China on the formation of the SAR is believed to have favoured requiring former Hong Kong residents who return to the territory after acquiring foreign passports to make a simple declaration of their intention to live here to retain their right of abode.

  There are also suggestions of additional requirements such as proof of property ownership or family residence.

  It is uncertain if China will accept these recommendations. But it has taken a lenient stance in handling the issue of residency rights in Hong Kong.

  Under Chinese law, there is no provision for granting permanent residency rights to non-Chinese nationals.

  In fact, when the draft Basic Law was released for public consultation, there were reservations over the provision of allowing non-Chinese nationals who have resided in Hong Kong for more than seven years to acquire permanent residency rights in the territory without having to become Chinese nationals.

  Despite such reservations, the provision was left unchanged in the final version of the Basic Law, in apparent recognition of the desirability of encouraging Hong Kong Chinese who have obtained foreign passports to return and long-term expatriate foreign nationals to stay.

  Although the Basic Law makes a distinction only between permanent residents with right of abode and non-permanent residents with no such right, in practice there will be two categories of permanent residents after 1997 with different political rights.

  Only permanent residents who are Chinese nationals with no right of abode overseas can have full political rights, including becoming principal officials of the SAR government and legislators.

  Permanent residents who are non-Chinese nationals will be barred from the principal posts and they can comprise no more than 20 per cent of members of the post-1997 legislature.

  Lately, Britain is said to have accepted China's position that former Hong Kong Chinese residents who have acquired foreign passports must return to Hong Kong before a specific date before the change of sovereignty in order to retain their right of abode in Hong Kong.

  This still leaves unsettled the issue of how and under what criteria those returning after the cut-off date and those non-Chinese nationals who currently have right of abode or unlimited right to stay in Hong Kong will be able to maintain or acquire residency rights after 1997.

  At present, long-term foreign nationals who intend to make Hong Kong their home can apply to naturalise as British Dependent Territory Citizens.

  But this right will expire by June 30, 1997, after which they will have to meet the Basic Law provisions.



Staying powers