Breach of Condition of Stay

Overstaying your visa in Hong Kong is not a minor issue. While some people believe it can be resolved with a bit of paperwork, the reality is much more serious. Regardless of whether you're a tourist, a dependent, an employee, or any other type of visa holder, overstaying your permitted stay is a criminal offence and may result in arrest, prosecution, and long-term immigration consequences.

Under the Immigration Ordinance, authorities can arrest anyone suspected of violating their visa conditions. Once detained, a person may be held for up to 48 hours while an inquiry is conducted. After this, the individual may be released on bail, which typically includes a cash deposit and requirements to report regularly to the Immigration Department while investigations continue.

If formal charges are brought, the overstayer will face criminal prosecution in court. This process can be stressful, time-consuming, and may take months to conclude. During this period, the individual is generally not permitted to leave Hong Kong.

In Nowodzelski v Director of Immigration [2018] 5 HKC 387, the Court of Appeal ruled that a person can be prosecuted for overstaying regardless of whether the act was intentional or the result of an honest mistake. Forgetfulness or reliance on an employer’s error is not a defence under the law. These may only be considered as mitigating circumstances when determining the penalty.

After court proceedings, the Immigration Department may issue a removal order requiring the individual to leave Hong Kong. This typically applies to those who no longer have legal status to remain in the city. For more serious cases, a deportation order may be issued, which prohibits the individual from returning to Hong Kong for a fixed term or even indefinitely.

Even without a deportation order, an individual with an overstay record may face challenges when attempting to re-enter Hong Kong. Upon arrival, immigration officers can:

• Verify your identity

• Examine your travel documents and visa

• Question you about the purpose and logistics of your visit

• Check for previous immigration or criminal records

Under the Immigration Ordinance, officers are authorised to deny permission to land and remove individuals who do not meet entry requirements. A previous overstay may raise red flags and lead to refusal of entry.

If you have a criminal or overstay record, applying for a visitor visa from your home country before travelling to Hong Kong is strongly recommended. This allows immigration officers to assess your case in advance. However, if you are subject to a deportation order, entry will almost certainly be refused.

For those aiming to apply for Hong Kong Permanent Residency (HKPR), overstaying can have long-term effects. According to immigration policy, non-Chinese nationals may apply for HKPR after residing in Hong Kong continuously for seven years.

Overstaying can jeopardise this in several ways:

• It may negatively affect future visa extension applications.

• Time spent overstaying does not count toward the 7-year residency requirement, as per Section 2(4)(a)(ii) of the Immigration Ordinance.

• Prior periods of ordinary residence may be invalidated if the continuity is broken.

• In Razwan Ahmed v Registration of Persons Tribunal & Ors [2012] 2 HKC 119, the Court confirmed that even honest mistakes do not allow an overstay period to be counted toward residency. No intent or fault is necessary for a break in residency continuity.

Hong Kong does not currently offer an automated system to alert visa holders about expiry dates. As a result, many people accidentally overstay and face serious consequences. If you are dealing with issues related to overstaying — or have concerns about your immigration status — it's important to seek accurate advice and take appropriate action as early as possible.