Malaysia My Second Home (“MM2H”) is commonly understood as a programme that allows eligible foreigners to reside in Malaysia on a long-term basis, subject to satisfying the applicable financial, immigration and other programme requirements.
For many applicants, the focus is understandably on obtaining approval, placing the required fixed deposit, satisfying income requirements and obtaining the relevant immigration endorsement.
However, a recent Malaysian High Court decision provides an important reminder that MM2H approval does not operate independently from Malaysia’s immigration laws.
In Sun Haotian’s application for judicial review, High Court of Malaya at Shah Alam, Judicial Review Application No. BA-25-63-09/2022, decided on 30 October 2023, the High Court considered the position of an MM2H participant whose passport had subsequently been cancelled by his country of nationality.
The case provides useful guidance on the legal nature of an MM2H pass and, in particular, the relationship between MM2H approval, passport validity and the powers of the Malaysian immigration authorities.
Background of the Case
The applicant was a citizen of the People’s Republic of China (“PRC”).
He had successfully obtained approval from the Malaysian Immigration Department for a Social Visit Pass under the MM2H programme in 2019. He had resided in Malaysia since that time and had placed a deposit of RM300,000, as required under the MM2H conditions applicable to him.
The approval granted to the applicant contemplated a ten-year MM2H Social Visit Pass.
Importantly, however, the approval was expressly subject to certain terms and conditions. One of those conditions provided that the duration of the MM2H Social Visit Pass was subject to the validity period of the applicant’s passport.
The Malaysian authorities subsequently received information that the applicant’s PRC passport had been cancelled.
Following this development, the applicant was arrested and later handed over to the Malaysian Immigration Department. A notice cancelling his MM2H Social Visit Pass was subsequently issued, together with orders relating to his removal and detention.
The applicant commenced judicial review proceedings challenging the legality of the actions taken against him.
MM2H Approval Is Subject to the Validity of the Passport
One of the principal issues before the High Court was whether the applicant could continue relying on his MM2H status notwithstanding the cancellation of his passport.
The Court referred directly to the terms of the applicant’s MM2H approval.
Although the MM2H Social Visit Pass had been granted for a period of ten years, the approval made clear that its duration remained subject to the validity of the applicant’s passport.
The Court held that because the applicant’s passport had been cancelled by the PRC authorities, he no longer possessed a valid passport and therefore no longer satisfied the condition attached to his MM2H Social Visit Pass.
This is an important legal distinction.
A ten-year MM2H approval should not necessarily be understood as providing an unconditional right to remain in Malaysia for ten years regardless of subsequent circumstances.
The continuing validity of the underlying travel document remains material.
The MM2H Pass Remains Part of Malaysia’s Immigration Framework
The Court also considered regulation 11 of the Immigration Regulations 1963.
In discussing the requirements relating to a Visit Pass, the Court referred to the requirement for a person to possess a valid passport permitting his or her return to the place of embarkation.
On the facts of the case, the Court concluded that once the applicant ceased to possess a valid passport, he could no longer maintain a valid Visit Pass.
The significance of this finding extends beyond the particular facts of the case.
MM2H may be administered as a specialised long-term residence programme, but the immigration status granted to a participant nevertheless exists within Malaysia’s broader immigration regime.
In practical terms, an applicant may satisfy the programme’s financial requirements, place the required fixed deposit and receive MM2H approval, but the participant must still maintain valid immigration and travel documentation.
MM2H approval and immigration status are therefore closely connected, but they should not be treated as the same legal concept.
Can an MM2H Pass Be Cancelled?
Another important aspect of the decision concerns the power of the Director General of Immigration to cancel an immigration pass.
The High Court referred to section 9(1)(b) of the Immigration Act 1959/63, which provides the Director General with statutory discretion to cancel a pass in writing.
On the facts before the Court, the applicant’s pass had been cancelled on 8 September 2022.
The High Court held that the cancellation was regular and had been carried out in accordance with the law.
For MM2H participants, this illustrates an important point.
The period stated in an MM2H approval or endorsement does not necessarily mean that the holder has an indefeasible right to remain in Malaysia throughout the entire period.
The MM2H pass continues to be subject to the Immigration Act 1959/63, the Immigration Regulations 1963 and the conditions attached to the particular approval.
Does Paying the MM2H Fixed Deposit Create a Right to Remain?
The facts of the case are particularly interesting because the applicant had already complied with a significant financial requirement of the MM2H programme.
He had deposited RM300,000 and had been residing in Malaysia under the programme since 2019.
Nevertheless, these facts did not prevent the authorities from taking immigration action once the applicant’s passport ceased to be valid and his MM2H pass was subsequently cancelled.
The case therefore demonstrates that satisfaction of the financial requirements of MM2H should be distinguished from the continuing legal validity of the participant’s immigration status.
The fixed deposit is one of the requirements associated with participation in the programme.
It does not, by itself, confer permanent residence or an unconditional right to remain in Malaysia.
Cancellation of the Pass May Have Serious Consequences
Following the cancellation of the applicant’s MM2H pass, the authorities proceeded under provisions of the Immigration Act relating to detention and removal.
The Court noted that a Notice of Cancellation of Pass had been issued, followed by an Order of Removal and an Order of Detention.
The applicant contended, amongst other matters, that his detention and the steps taken to remove him were unlawful.
However, the High Court ultimately held that the relevant detention was supported by the existing provisions of the Immigration Act.
This aspect of the judgment illustrates why problems concerning an MM2H participant’s passport or immigration status should be addressed promptly.
Once the underlying pass is cancelled or ceases to provide a lawful basis for remaining in Malaysia, the matter may extend beyond the administration of the MM2H programme itself and engage the enforcement provisions of the Immigration Act.
Can an Immigration Decision Be Challenged in Court?
The case also illustrates the role of judicial review.
The applicant challenged the decisions and actions of the authorities on established administrative-law grounds.
The High Court referred to the traditional grounds of judicial review, namely:
- illegality;
- irrationality; and
- procedural impropriety.
The Court cited established Malaysian authorities explaining the scope of judicial review and the circumstances in which an administrative decision may be scrutinised by the courts.
However, judicial review does not mean that a court will automatically overturn an immigration decision merely because the affected person disagrees with it.
The court considers whether the decision or action is legally defective according to recognised principles of administrative law.
In the Sun Haotian case, the High Court ultimately found that there was no illegality, irrationality or procedural impropriety sufficient to justify granting the judicial review application.The application was therefore dismissed.
What Can MM2H Applicants and Participants Learn From This Case?
The decision provides several practical lessons.
First, MM2H approval does not exist separately from Malaysia’s immigration laws.
Even after an applicant has satisfied the MM2H programme requirements, the immigration pass issued pursuant to that approval continues to be governed by the Immigration Act 1959/63 and the Immigration Regulations 1963.
Second, passport validity is fundamental.
In this case, the MM2H approval itself expressly made the duration of the pass subject to the validity of the applicant’s passport. Once the passport was cancelled, the applicant no longer fulfilled that condition.
Third, the stated duration of an MM2H pass should not be treated as an unconditional guarantee of residence for that entire period.
The continued validity of the pass depends upon compliance with the applicable legal and administrative requirements.
Fourth, financial compliance does not by itself guarantee continuing immigration status.
A participant may have placed the required fixed deposit and complied with other programme requirements, but those matters do not override the requirements of immigration law.
Finally, decisions of the immigration authorities may in appropriate circumstances be challenged through judicial review, but the applicant must establish recognised grounds such as illegality, irrationality or procedural impropriety.
MM2H Approval, Immigration Pass and Permanent Residence Are Different Concepts
The decision also highlights a broader point that is sometimes misunderstood by prospective MM2H applicants.
There is an important distinction between:
MM2H programme approval;
the immigration pass issued pursuant to that approval; and
permanent residence or an absolute legal right to reside in Malaysia.
They are not interchangeable concepts.
MM2H provides a mechanism through which qualifying foreigners may obtain long-term permission to reside in Malaysia subject to the applicable conditions.
It should not be equated with citizenship or permanent residence, nor should an MM2H approval be regarded as creating an unconditional right of residence irrespective of Malaysia’s immigration laws.
Conclusion
The High Court decision concerning Sun Haotian provides an important legal perspective on Malaysia My Second Home.
While MM2H is designed to facilitate long-term residence in Malaysia, the immigration status enjoyed by an MM2H participant remains subject to the Immigration Act 1959/63, the Immigration Regulations 1963 and the conditions imposed upon the particular approval.
In the case before the Court, the applicant had obtained MM2H approval, had resided in Malaysia for several years and had placed the required RM300,000 deposit.
Those circumstances did not, however, preserve his immigration status after his passport had been cancelled and the condition relating to passport validity could no longer be satisfied.
The practical message is therefore an important one:
MM2H provides long-term immigration privileges, but it does not confer an absolute or indefeasible right to remain in Malaysia.
Applicants and existing participants should therefore pay attention not only to the financial requirements of the MM2H programme, but also to the continuing validity of their passports, immigration endorsements and compliance with the conditions governing their stay.
This article is intended for general information only and does not constitute legal advice. The legal position in any particular case will depend upon its specific facts, the applicable MM2H conditions and the immigration laws and policies in force at the relevant time. The information contained in this article is believed to be accurate based on the reported case and the circumstances existing at the material time.
The authors have no information, for the purposes of this article, as to what may have transpired subsequent to the reported decision, including whether any appeal or further proceedings were commenced, whether the matter was subsequently considered by a higher court, or whether there were any subsequent developments affecting the parties or the decision.