COURTS TUI | states permanent residency denied on grounds of absent family

The former Secretary for Administration and Justice and the Identification Services Bureau (DSI) has violated MSAR’s Basic Law, according to a ruling by the Court of Final Appeal (TUI) this week. The case concerns the rejection of an eligible skilled migrant’s request to transition to permanent resident status because his family did not live in Macau.
The TUI stated in its verdict that although there are several factors that identify whether an applicant is eligible for the right of abode, such as having a family or job in Macau, they are, “only simple indications for the DSI to take a reference in the approval progress, rather than the necessary requirements that need to be met at the same time.”
According to the Basic Law, a person is entitled to the right of permanent abode if he or she has resided in the territory for seven consecutive years and regards it as his or her permanent place of residence. However, the law didn’t clearly explain the standard of “permanent or final place of residence.”
The TUI explained that “the permanent place of residence” should mean that it is not only the place where one lives in, but also “the center of one’s daily life” where he or she conducts work and family life, possesses a stable income if not working there, pays tax and has the intention of settling down permanently.
“We also think that the administrative authorities absolutely have the right to take into consideration any important facts to make the judgment, even if these factors are not listed in the regulations,” it added.
The migrant, an Irish national, resided in Macau for seven consecutive years after obtaining the right of temporary residency in 2005 through the immigration scheme for investors, managers and special skilled professionals. However, his application for the right of permanent abode was rejected by the DSI, as his wife and underage child were living in Ireland.
Such reasoning was also backed by the then Secretary for Administration and Justice, who dismissed the man’s administrative appeal in January 2013. Nevertheless, the applicant further appealed to the Court of Second Instance (TSI) and won.
However, the then secretary was not convinced by the TSI’s ruling and appealed against the TSI’s collegial panel to the superior court, TUI, but eventually lost the case.
“We believe that for an applicant who has in fact been separated from his family, his wife and underage child not living in Macau doesn’t prejudice him taking Macau as his permanent place of residence,” said the verdict.
Besides supporting the TSI’s ruling and indicating the administrative authorities’ violation of the Basic Law, the TUI also refuted the former Secretary’s statement that the DSI has “discretion” over the mentioned matter.
“This is a new opinion that hasn’t been expressed before. Opposite to the appellant [the former Secretary]’s opinion, we think that the law (…) didn’t intend to give the administrative authorities any discretion to decide who should become a permanent resident and who should not,” said the TUI, adding that the authorities exercising their limited power is a different matter.