Don’t neglect your visa expiry date: the serious consequences of overstaying in Hong Kong

In this article, we discuss the consequences of overstaying your visa in Hong Kong. In a related article (An Overview of 3 Common Immigration Offences in Hong Kong – Overstaying, Making False Representation and Employment of Illegal Workers (tannerdewitt.com)), we discussed the law relating to overstaying, and in particular section 41 of the Immigration Ordinance, Chapter 115 of the laws of Hong Kong.

Overstay means you have breached one of your conditions of stay by staying in Hong Kong longer than was allowed by the Immigration Department and under the terms of the visa under which you entered Hong Kong.

There is a wide perception that overstaying does not have serious consequences and only requires the submission of some paperwork to the Immigration Department to solve the issue.  This is a misconception. No matter whether you are a traveller, a dependant, an employee, or any kind of visa holder, you may face grave consequences if you overstay in Hong Kong. Overstaying is a criminal offence.

The Immigration Department treats such offences seriously.  The maximum penalty for an overstay conviction is a fine of HK$50,000 and 2 years of imprisonment.

It is an overstay, even if just for a day or two

The Immigration Department is very strict on overstay matters. If your visa has already expired at the time you attempt to exit Hong Kong, you will not be permitted to leave and will likely be arrested. The Prosecution Section of the Immigration Department will normally bring charges against overstayers even though the overstay period is as short as one or two days.

Arrest, detention and bail

The Immigration Ordinance provides that a person may be arrested if he is suspected to have contravened a condition of stay.  The Immigration Department also empowers the Immigration Department to detain a person for inquiry, in custody, for up to 48 hours.

After an inquiry is made, the Immigration Department will normally release the overstayer on bail with conditions such as the deposit on cash bail and physically reporting to the Immigration Department on a regular basis.

The overstayer will be involved in a lengthy Court proceeding

After further investigation is complete, if the Immigration Department decides to bring charge against the overstayer, the overstayer will be involved in Court proceedings, by way of a criminal prosecution. Thiscan be stressful, time-consuming, potentially expensive and often takes months. The overstayer will normally not be allowed to leave Hong Kong during the process.

Forgetfulness is not an excuse

In Nowodzelski v Director of Immigration [2018] 5 HKC 387, the Court of Appeal confirmed that even if the overstayer lacks the intention or knowledge of the wrongdoing, he is regarded as having contravened the condition of stay and may be prosecuted and/or removed from Hong Kong by the Immigration Department.

The Court does not accept forgetfulness or a mistake by others, such as an employer, as a defence to an overstay charge. These can only be mitigating factors, which means the explanation of the extenuating circumstance presented to the Court that might result in a lighter sentence.

The overstayer may eventually be removed or deported from Hong Kong

The Immigration Department can issue a removal order against an overstayer. A removal order is generally made for people who have no right to be or remain in Hong Kong, or who are in defiance of conditions of stay. The overstayers will normally be required to leave Hong Kong shortly after the completion of the Court proceedings.

In cases of a more serious nature, the Immigration Department can issue a deportation order against an overstayer. The overstayer will normally be deported from Hong Kong, meaning that he is not allowed to return to Hong Kong for a fixed period or for life.

The overstayer may encounter problems if he wishes to travel to Hong Kong in the future

Although a typical removal order does not prohibit an overstayer from returning to Hong Kong, the overstayer may still encounter problems if he travels to Hong Kong in the future.

Officers of the Immigration Department may examine any person on his arrival in Hong Kong to:

1. verify his identity;
2. check whether he possesses a valid travel document and a valid visa;
3. enquire about the purpose and arrangements of the visit; and
4. check whether he has any known criminal record.

The Immigration Ordinance authorises officers of the Immigration Department to refuse to give visitors permission to land in Hong Kong after examination. Further, the Immigration Ordinance empowers officers of the Immigration Department to remove persons who have been refused permission to land. 

Therefore, it is possible that a person may be refused entry to Hong Kong if the Immigration Department finds the visit of that person suspicious.

Consider applying for a visa from your home jurisdiction

If you have a criminal record in Hong Kong and you were given a removal order, you may have concerns about whether your entry will be refused if you travel to Hong Kong again. A solution to this is to make a visitor visa application to the Hong Kong Immigration Department before you travel to Hong Kong. However, if you were given a deportation order, it is almost certain that your entry will be refused if you travel to Hong Kong.

Negative impacts on the application for Hong Kong Permanent Residency (HKPR)

It is the immigration policy that a person not of Chinese nationality who has entered Hong Kong with a valid travel document, has ordinarily resided in Hong Kong for a continuous period of not less than seven years and has taken Hong Kong as his place of permanent residence, is eligible to apply for HKPR.

Visa holders who have plans to apply for HKPR should take extra caution not to overstay because:

1. an overstay conviction may have an adverse impact on the decision of the Immigration Department concerning a visa extension application; and
2. section 2(4)(a)(ii) of the Immigration Ordinance provides that the overstay period is not considered ordinary residency. This will result in a break of the 7 years of continuous ordinary residency, meaning that the accumulated time as an ordinary resident prior to the overstay period may be lost; and
3.  it was confirmed by the Court in In Razwan Ahmed v Registration of Persons Tribunal & Ors [2012] 2 HKC 119 that even an honest mistake cannot cause an overstay period to be treated as part of a period of ordinary residency. The application of section 2(4)(a) of the Immigration Ordinance does not require proof of culpability or knowledge of the person whose ordinary residence is in question.

Conclusion and what to do if these issues affect you

The Hong Kong Government has yet to establish an electronic, technology based notification system to remind visa holders about the expiry dates of their visas. Many people overlook the expiry dates of their visas and face prosecution. Tanner De Witt can guide you through if you are involved in an overstay matter or if you are facing any immigration issues resulting from an overstay case. Please contact us at [email protected]

Russell Bennett and Teresa Lau

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.