A protector of a trust may assist the settlor in retaining influence over the operation of a trust but may increase the risk of undermining the trust
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The Canadian Government offers a number of different pathways for Hong Kong residents to immigrate to Canada. Some of these pathways are designed specifically for Hong Kong residents and some are available to foreign nationals from around the world, including those from Hong Kong. In this article, we outline some of the available pathways. For more information on options for immigrating to Canada from Hong Kong, please contact one of our immigration lawyers. As a Hong Kong law firm with Canadian law capabilities, we are well positioned to assist private clients, high net worth individuals and other residents of Hong Kong with any potential move to Canada, including as regards immigration law matters as well as related family trust and business law matters.
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Canada is a free and democratic country which the 2021 US News and Reports survey ranks as the best country to live in anywhere in the world. It offers:
The highest quality of life of any country, based on factors including the quality of its public education system and its public health system, political stability and public safety.
A competitive business environment that ranks sixth globally, based on factors including the education level of the population, connectivity to the world, transparency in business practices, a well developed legal framework and well developed infrastructure.
At the same time, Hong Kong and Canada enjoy deep ties. Many Hong Kong families have friends or relatives in Canada and there is a deep and vibrant Chinese community in Canada.
It is not surprising therefore, that for many Hong Kongers, the desire to immigrate to Canada and, in particular, Vancouver and Toronto, has for many years been a preferred option. Immigrating to Canada from Hong Kong typically requires 2 steps, the first and most important step being to find a pathway to permanent residency in Canada and the second step being to obtain Canadian citizenship after becoming a permanent resident.
Unlike Hong Kong, the pathway to permanent residency in Canada does not depend upon staying in Canada for a period of 7 continuous years. A Hong Kong resident looking to obtain permanent residency has a number of options, including federal immigration programs as well as provincial immigration programs.
Federal immigration programs enable admission as a permanent resident of Canada on the basis of family relationship (i.e. as a member of the Family Class) or the ability to become economically established in Canada (i.e. as a member of the Economic Class). Provincial programs enable admission as a permanent resident of Canada on economic grounds (i.e. as a member of the Provincial Nominee Class).
Some Hong Kongers may choose to study or work in Canada under a study permit or work permit and then, once in Canada, apply for permanent residency. Under many federal and provincial Canadian immigration programmes, prior education or work experience in Canada increases the likelihood of qualifying for permanent residency.
Based on data provided by the Canadian government, in each of 2018 and 2019, just over 1,500 Hong Kong persons were admitted to Canada as permanent residents. About half of those admitted as permanent residents from Hong Kong were admitted as members of the Family Class. About 20% of Hong Kong residents were admitted to Canada as permanent residents in each of those years as members of the Provincial Nominee Class and about 14% of Hong Kong residents were admitted to Canada as members of the Economic Class.
Looking more closely at the data for the Economic Class, it appears that the majority of the members of this class were admitted to Canada as permanent residents either as skilled workers (i.e. as members of the Skilled Worker sub-class) or on the basis of prior Canadian work or study experience (i.e. as members of the Canadian Experience sub-class). However, some members of this class were admitted on the basis of being investors or on the basis of starting-up their own business.
It is more difficult to understand the pathways being used within the Provincial Nominee Class as this class includes both individuals who obtain employment as a skilled worker or in a skilled trade as well as investors and entrepreneurs within provincial programs to encourage business.
In the short term, as a result of Covid-19, the Canadian government has restricted entry into Canada and persons who have received a confirmation of permanent residency (but who are not yet permanent residents) may nevertheless be denied entry to Canada. In contrast, persons who receive work permits or study permits are likely to be admitted to Canada under exemptions to Covid-19 travel restrictions.
So long as these travel restrictions remain in place, for Hong Kong residents looking to move to Canada earlier, there may be an advantage to seeking permanent residency through a work or study permit that will allow entry into Canada and then, once in Canada, applying for permanent residency.
On November 12, 2020, the Canadian Government announced a new initiative to attract students and youth to immigrate to Canada from Hong Kong by offering a new open work permit and broadening pathways to permanent residency. In line with this initiative, under a temporary public policy (“Immigrating to Canada from Hong Kong Policy”) that took effect from February 8, 2021 and will remain in effect for 2 years until February 7, 2023, the Canadian Government will issue open work permits to eligible Hong Kong persons and their eligible family members.
An open work permit will enable certain recent Hong Kong graduates and their spouses to move to Canada to find work. They can live and stay in Canada for up to 3 years. During this time, they can work for any employer and can live anywhere in Canada.
Once in Canada, they may be able to apply for permanent residency, using work experience gained in Canada on the open work permit to support their application. They will have a number of different pathways to gain permanent residency, including a new pathway that is to be announced later in 2021 and that will be open to such graduates who have obtained at least 1 year of work experience in Canada and who meet minimum language and education levels.
The Immigrating to Canada from Hong Kong Policy is open to persons who meet the following criteria:
Holder of a Hong Kong Passport – The person must either hold a passport issued by the Hong Kong Special Administrative Region of the People’s Republic of China or be a person who is a British National (Overseas) who was person born, naturalized or registered in Hong Kong and to whom the United Kingdom issued a passport.
Recent Graduate of Post-Secondary Educational Institution – In the 5 years before their application, the person must have graduated with either (i) a degree, or (ii) an eligible diploma from a designated post-secondary institution or with an equivalent foreign degree or diploma.
The spouse or common-law partner of a person who meets the above criteria is eligible for an open work permit as well provided that he or she is at least 18 years of age.
Hong Kongers who are interested in immigrating to Canada by directly applying for permanent residency and who may qualify as a skilled worker may consider submitting an expression of interest through the Express Entry system.
The Express Entry System is a Canadian government immigration system which enables foreign nationals, such as Hong Kong residents, to express interest in candidacy for permanent residency and to provide information for the purpose of enabling immigration authorities to rank foreign national candidates. Candidates are grouped into pools based on immigration program and the time at which they made their submission into the Express Entry System. Candidates in each pool who meet eligibility criteria and rank the highest in the scoring system will receive an invitation to apply for permanent residency in Canada.
A foreign national may be eligible to receive an invitation to apply for permanent residency under the Express Entry System only if the candidate meets the criteria for one of the immigration programs administered through the Express Entry System. These programs include the Skilled Work sub-class and the Canadian Experience sub-class.
The Express Entry System uses a system known as the Comprehensive Ranking System to score candidates. Under the Comprehensive Ranking System, candidates receive points based on a number of factors. These factors are grouped in 4 categories, namely Core-Human Capital Factors, Spouse or Common-Law Partner Factors, Skill Transferability Factors and Additional Factors.
In broad terms:
Core-Human Capital Factors – These factors give points based on age, level of education, official language proficiency and Canadian work experience of the candidate.
Spouse or Common-Law Partner Factors – These factors give points for level of education, official language proficiency and Canadian work experience of the candidate’s spouse or common-law partner.
Skill Transferability Factors – These factors give points based on combinations of (i) official language proficiency together with post-secondary education, (ii) Canadian work experience together with post-secondary education, (iii) official language proficiency together with foreign work experience, (iv) Canadian work experience together with foreign work experience, and (v) official language proficiency together with a certificate of qualification.
Additional Factors – These factors give points for siblings in Canada, French language skills, post-secondary education in Canada, arranged employment and provincial nomination.
Of these factors, the most significant are the Core-Human Capital Factors, arranged employment and provincial nomination.
Arranged employment is a type of offer of employment. For skilled workers, an arranged employment is an offer made to a candidate by a single employer (other than an embassy or consulate) for continuous full-time work in Canada which meets the following requirements:
Term – The employment must be for a minimum term of 1 year.
Occupation – The employment must be in management role (Skill Type 0) or in a role usually requiring university or college education or specialized training or apprenticeship (Skill Level A or B).
Impact on Canada – The offer is (i) supported by a positive or neutral Labour Market Impact Assessment (“LMIA”), (ii) made by a person who currently employs the candidate under a work permit that was issued based on a positive LMIA, or (iii) made by a person who currently employs and has for at least 1 year employed the candidate under a work permit that was issued so the candidate could perform work in circumstances where an LMIA is not required (e.g. under an international agreement or in circumstances that would create or maintain significant social, cultural or economic benefits or opportunities for Canadians).
Employment offers from employers with prior history of non-compliance with immigration requirements for employment of workers on a work permit do not count as arranged employment.
Arranged employment for senior executive positions can earn 200 out of a possible 1,200 points but all arranged employment in respect of all other positions only earns 50 points.
Each Canadian province operates its own immigration programs designed to cater for labour market needs within that province. Foreign nationals intending to live in that province may apply under those programs for nomination based on their ability to meet criteria established by that province to meet local needs.
A foreign national who receives a nomination certificate and who accepts it will receive 600 of a maximum 1,200 points in the Express Entry System. As a result, any foreign national including a resident of Hong Kong intending to immigrate to Canada should explore options for provincial nomination.
Hong Kongers who are interested in immigrating to Canada by starting a business may consider applying for a permanent resident visa under the Start-up Visa Program. First launched in 2013 and modified over the years, the program offers immediate permanent residency in Canada to foreign nationals, including Hong Kong persons, who intend to live outside Quebec, are innovative and demonstrate potential to build businesses in Canada that create jobs for Canadians and that can compete on a global scale.
To qualify, an applicant must show an investment commitment from a designated organization, minimum proficiency in English or French and sufficient funds to meet his own living expenses as well as those of his family members.
The Start-up Visa Program is open to foreign nationals who obtain a commitment from a designated organization within 6 months of their application. The commitment may be from:
Angel Investors - a designated angel investor group or 2 or more designated angel investor groups together investing at least $75,000 CAD in the applicant’s business,
Venture Capital Fund – a designated venture capital fund or 2 or more designated venture capital funds together investing at least $200,000 CAD in the applicant’s business, or
Business Incubator – a designated business incubator in which the applicant’s business is participating or has been accepted.
An applicant under the Start-up Visa Program is not considered to have met applicable requirements if fulfillment of those requirements is based on transactions entered into primarily for the purpose of acquiring immigration status or privilege.
Yes, however, there can be no more than 5 co-founders of the same business applying for permanent residency under the Start-up Visa Program. If any co-founder is refused a permanent resident visa, the applications of all other co-founders must be refused.
To be eligible for the Start-Up Visa Program, the applicant’s business must be or will be in the form of a Canadian corporation in which (i) the applicant holds 10% or more of the voting rights, and (ii) the majority of the voting rights are held by the applicant, the designated business incubator, angel investor group or venture capital fund and any other co-founder who has obtained permanent residency under the Start-up Visa Program.
Furthermore, the applicant must provide active and ongoing management from within Canada, for which an essential part of operations is conducted in Canada.
The BC Entrepreneur Immigration Program enables a foreign national to obtain permanent residency by investing into a new or existing eligible business in BC that earns profits by providing products or services and has strong potential for sustained commercial success. The business must create at least 1 new full-time permanent job for a Canadian citizen or permanent resident.
The applicant must own at least one-third of the business and must be actively managing the business.
Under the BC Entrepreneur Immigration Program, the applicant must have a minimum personal net worth of $600,000 CAD and must invest at least $200,000 CAD of his net worth into his business.
A protector of a trust may assist the settlor in retaining influence over the operation of a trust but may increase the risk of undermining the trust
A letter of wishes enables a settlor to provide guidance to a trustee as to how the trustee will exercise its powers under the trust
FAQs on Canada Hong Kong Immigration for Hong Kong citizens planning to immigrate to Canada
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