Navigating the intricacies of immigration status in Hong Kong is paramount, especially for visitors. The Hong Kong Immigration Department plays a crucial role in maintaining this balance by granting the right to work to individuals who do not have an automatic right to work in Hong Kong—through various employment visas. Additionally, the Department rigorously identifies and prosecutes those who work without proper authorization.
|
Permissible Activities for Visitors |
The following activities are expressly permitted for visitors under the conditions of stay outlined by the Immigration Department:
|
Restrictions on Employment |
Aside from the aforementioned exceptions, visitors are generally prohibited from “taking any employment,” whether “paid or unpaid” (Regulation 2, Conditions of Stay, Chapter 115 Immigration Ordinance). Therefore, receiving payment for work is not essential to be considered as employment. Participating in charitable or volunteering activities can also constitute a breach of your conditions of stay.
Even if one is granted an employment visa, regardless of its category, the individual remains “subject to the conditions of stay” and may only undertake employment approved by the Director of Immigration (Regulation 2, Conditions of Stay, Chapter 115 Immigration Ordinance). For holders of the General Employment Policy (GEP) visa and the Admission Scheme for Mainland Talents and Professionals (ASMTP) visa, this means they cannot change jobs or work for a new employer without prior permission from the Immigration Department. |
Definition of Employment |
Although the Immigration Department’s law enforcement powers come from the Immigration Ordinance, the term “employment,” especially when the alleged employee is unpaid, is not explicitly defined in the ordinance. Instead, the boundaries are established through case law. According to judicial rulings:
Special relationships, such as close friendships or familial ties, can negate claims of employment, even if the activities are typically performed by paid employees but the alleged employees worked for free on a temporary basis because of these relationships (R v Ip Po Fai [1996]). In 政府 訴 陳素冰 [2005], the court noted in an obiter dictum that relationships such as "a volunteer helps a sick newspaper vendor sell newspapers at a newsstand" can dispel claims of employment. HKSAR v FEROSH [2014] further affirms that a conviction should preclude the possibility that the alleged employees are working solely for their own benefit. These rulings serve as guiding principles for the Immigration Department in their enforcement practices.
|
Summary of Employment Characteristics |
Employment in the context of the Immigration Ordinance generally exhibits the following characteristics:
It is crucial to assess whether your relationship with a business exhibits these characteristics if you are suspected of taking up employment. Immigration Consultants and Advisors at Kaizen have extensive experience in the immigration industry and have helped applicants with suspected breaches of stay conditions navigate their visa and immigration applications without being prosecuted. Should you find yourself in such a situation, we recommend you consult or contact us for assistance. |
Disclaimer: The information provided in this article reflects our professional opinion based on our experience with the Hong Kong Immigration Department. It is provided for general informational purposes only and should not be construed as legal advice or opinion.
|
Reference:
|
Related Topics: Work Permit Application Procedures and Fees |
Should you need any assistance or wish to obtain more information, please also browse our official website at www.kaizenvis.com or contact us through the following means:
T: +852 2341 1444 M: +852 5616 4140, +86 152 1943 4614 WhatsApp / Line / Signal / WeChat: +852 5616 4140 Skype: kaizencpa |