何謂定居於海外?海外出世港人奉旨係永久居民?

LEUNG KIT YEE KITTY on behalf of MASTER LAMB NICHOLAS EDWARD v REGISTRATION OF PERSONS TRIBUNAL and COMMISSIONER OF REGISTRATION

85. Whilst Ms LEUNG gave evidence that the permanent resident cards held by her husband and herself are subject to renewal, the fact remained that the Appellant’s parents had attained permanent resident status in Canada as early as in May 2005 (this is one of the important factors to be considered according to the Interpretation of the Laws of the People’s Republic of China – Encyclopaedia of Decided Cases (Editors-in-Chief being Cai Cheng and Xiao Yang)(《中華人民共和國百法釋解案例全書》主編:蔡誠、蕭揚) and the Appellant’s parents were not subject to any limit of stay when they were in Canada. They could stay in Canada as long as they wish.

86. The Appellant’s mother gave birth to her first daughter, Jane in Ontario in April 2005. It was the common intention of both the Appellant’s parents that Jane should grow up in Canada. The Appellant was subsequently born on 3rd April 2008 in Canada. After the birth of the Appellant, Ms LEUNG applied for a driving licence.

87. All long, the Appellant’s family lived in a property owned by the Appellant’s paternal grandfather. In or about 2008 or 2009 and after the Appellant was born, the Appellant’s parents and elder sister Jane obtained Canadian passports and attained the status as Canadian citizens. By the end of 2010, the Appellant’s parents had returned their permanent resident cards to the Canadian authorities.

88. During the years between 2004 and 2009, the Appellant’s parents were out of Hong Kong for most of the time. They were all along residing in Canada. The Appellant’s parents expressly admitted that during the said years, they did intend to settle in Canada for good. They did live in Canada continuously for about 5 years and it was only unfortunate that they were not able to find any job.

89. During their stay in Canada, the Appellant’s parents had obtained ‘OHIP Cards’ by which they were covered by health insurance. They also had obtained their respective social insurance cards which had no expiry dates and which were a ‘must have’ for any person who wanted to work in Canada.

90. During the said years, the couple adopted Canada voluntarily as their abode. They resided there voluntarily for settled purposes as part of their regular order of life for the time being. They were ordinarily resident in Canada in those years. As seen from R v Barnet London Borough Council ex parte Shah, supra, at 343G – 344B – D, it is not required that the couple must intend to stay in Canada indefinitely. The purpose, while settled, could be for a limited period of time only. Employment and family were the clear reasons why the couple chose Canada as their regular abode.

91. In the premises, we are not satisfied that the Appellant has discharged his burden to prove on the balance of probabilities that he has a right of abode in Hong Kong and should be given HKPR status. We are of the view that at the time of the Appellant’s birth, (1) he had acquired or had (‘具有’) foreign nationality and that (2) his parents had settled in Canada.” (emphasis added)

好多香港人仲懵盛盛,以為只要黃皮膚黑頭髮,自己未入籍當地,喺海外出世嘅子女奉旨係中國人,同奉旨係香港永久居民。呢單高等法院嘅案例話俾大家聽,大錯特錯,而且就算打到終審法院一樣輸到褲甩。

1. 中國國籍法嘅定義,係用咗好古惑嘅「定居於海外」,而唔係「喺當地入咗籍」,或當地有永久居民身份。總之你可以喺當地留幾耐都得,就符合定居於海外嘅定義。按此推論,BN(O)居歐權持有人喺歐洲出生子女,如果可以喺居留國家攞國籍,特別係自由行動證書轉永久居民果批,果啲人唔會有中國籍,只會有當地國籍。有自由行動證書,或者你喺當地有嘢做,或者你有當地永久居民身份,都會「中招」。當然呢道,唔會詳細討論邊個歐洲國家會中招機會大。

2. 對於南洋人嘅國籍問題,特別入境處誤判有中國國籍部分印尼、大馬等國華人後裔,呢單案嘅結論好清楚,你只要印尼、大馬出生,你父母喺當地住生你嘅話,例如有自己間屋,或有生意,即刻唔係中國人。我諗呢單案後,好多南洋人嘅後代,特別父母都係南洋出世果批,要去英國使館登記成為英國公民,或者可能有成棚人要去攞印尼、大馬等國護照。

3. 如果你子女係加拿大出世,出世果陣你已經攞咗楓葉卡,你可以專心做加拿大人。同樣道理,兩個英國公民,或攞咗ILR嘅BN(O)喺英國出生子女,都只會係BC。


22 thoughts on “何謂定居於海外?海外出世港人奉旨係永久居民?

  1. “中國國籍法嘅定義,係用咗好古惑嘅「定居於海外」,而唔係「喺當地入咗籍」,或當地有永久居民身份。總之你可以喺當地留幾耐都得,就符合定居於海外嘅定義。”

    Yes you are right – very sneaky indeed.

    But I do think this is just a way to maintain the single citizenship policy in China…no more freebies!

  2. 睇嚟小朋友唯一可以住足七年在攞身份證就靠「來港就讀」簽證。當然有其限制,例如唔可以讀公立或資助小學。如有錯誤請更正。

  3. 順便回應S兄喺上面嘅問題。以我對上一次去換智能身份證所知(時為2005年),所有家庭成員嘅永久居民身份全部有效,就算係已經攞咗加籍。不過以後去中國大陸唔該去攞visa。

  4. S,

    I don’t think this weak SAR Gov’t dares revoke the permanent resident identity cards issued before 1997 as it will involve/affect the interest of many middle and upper class people. And those people are able to turn HK upside down.

  5. I have a question. According to Basic Law article 24, The permanent residents shall be:
    ( 1 ) Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;
    ( 2 ) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;
    *( 3 ) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);

    So I do not understand why the children born in Canada cannot have HKPR status. They do not have Chinese Nationality, it is normal and understood.

  6. re magiccello: the focus is on (2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region. The kid has not been fulfilled this requirement (yet) , so the Court rejects his parents’ request of obtaining HKID.

  7. @magiccello the child in this case is not a Chinese citizen according to the law, so therefore wouldn’t be a PR by birth in accordance to the rules you listed

  8. re: turbodiesel, I don’t think that’s quite right. I agree with magiccello, the kid is fighting on the premise that he was born outside of Hong Kong, to parents that were of Chinese nationality. By clause (3) he should enjoy PR status. However, the court counters that argument by stating that the parents voluntarily gave up their Chinese nationality by ordinarily living in Canada and attaining Canadian citizenship. Therefore, their kid was not born to parents of Chinese nationality, and hence could not invoke clause (3).

  9. Further to Scorpio – According to (3) the parents were not regarded as resident of HK since their residence is Canada.
    So resident of HK while temporarily away who give birth to a child overseas, the child would be entitled HK residence.

  10. 請恕本人無知,有以下的疑問:
    1 )申請的不是中國藉,為何要引用中國法例。若果如此,是否以後香港判案都以大陸法為準,那麼香港會否有死刑。
    2)相信大陸沒有住滿七年有居留權這回事,是否可引此否決住滿七年有居港權。

  11. No matter Lamb’s parents are of Chinese nationality or not, the Immigration Dept have determined that his parents are already resident in Canada, and Lamb himself is Canadian by nationality and therefore not of Chinese nationality. Article 24(2)(3) doesn’t apply since Lamb isn’t of Chinese nationality. A prerequisite of Article 24(2)(3) is that the person him/herself is of Chinese nationality. The nationality status(es) of his/her parent(s) is/aren’t that relevant.

  12. That’s because the Nationality Law of the People’s Republic of China is listed in Annex III of the Basic Law. And, yes, theoretically and constitutionally they can list whatever they want in Annex III.

  13. 係我個case入面我老母比屈既地方係1960我老母從印尼去中國也有所謂歸國証明書.而比屈有中國藉.
    但最過份既地方,1969married 1974自願宣誓跟其丈夫入英藉. 而中印條約笫十條講名:第十條 中華人民共和國公民同印度尼西亞共和國公民結婚,婚後雙方各保有他們原來的國籍,但其中一方如果根據本人自願原則,申請並取得另一方的國籍,在取得另一方的國籍之
    後,即當然喪失他或她原來的國籍。( 分別我老母所嫁係英藉老豆 ) 歧視英藉呀!
    入境處只答97後持有BNO有中國人血統的在港人仕全都擁有中國籍. 這樣lol 如果係咁已侵犯聯合國已婚婦女國籍公約.

    問英國佢話唔關佢事,問香港入境處又話前政府既事不答,唔通要去中聨辦????.

    Martin: 其實係這單case 有咩地方相似或Point 位我用得著?

  14. The problem is that according to the PRC, BDTC and BNO don’t exist as nationalities. They are travel documents only.

  15. 那高院上訴庭民事上訴案件2001年第351號(CACV351/2001)和這個高院(原訟庭)判決的背景有甚麼分別呢?因為兩位小孩同為海外出生。

  16. urbane peasant: 「中國國籍法」同「人大常委關於國籍法在香港實施的解釋」係晌香港執行的「全國性法律」的其中一種。放在香港法例活頁版內。

  17. 06574184: 唔同,CACV351/2001係97前問題,當時人85年出世,有BN(O),英國法律確認佢係HKPR。
    HCAL103/2011係97後問題,當時人08年出世,基本法禁止佢成為HKPR。

  18. 依照丧权辱国的《中华人民共和国国籍法》,北京、香港、澳门当局应根据外国法律对当事人及其父母的国籍和居籍的规定来判断其是否具有中国国籍。

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