Chinese Immigration Law

Guofu Liu

• Editorial: Routledge
• Año: 2016
• ISBN:
  9781317167013
• Edición: 1
• Categoría: Sciences sociales
• Categoría: Émigration et immigration

Lacking a single immigration code, Chinese immigration law is widespread, encompassing a variety of laws, regulations and policies, some of which are internal and closed. There is also no immigration cases system. These factors have combined to make the study and understanding of the system difficult for those outside or unfamiliar with this area of Chinese law. To add to this complexity, since the reform and opening-up policy in 1978, Chinese immigration law has been experiencing significant change. In particular, that brought about by the acceptance of a market economy in 1991, and with access to World Trade Organization membership in 2001. Due to the dilation of the legislation, the issue of conflict between Chinese immigration law and other Chinese laws has become serious. This book provides a comprehensive, up-to-date, and readily-accessible reference to Chinese immigration law. It provides the necessary detail, insight and background information for a thorough understanding of this complex system. The book has been written on the basis of Chinese statutes while also including coverage of the relevant international instruments. The work draws on and compares Chinese and English language sources, making it an invaluable resource for both Chinese and non-Chinese readers alike.

Chapter 1
Introduction

China does not attract large numbers of immigrants – it already has the largest population in the world while its communist political system, transitional economy and Confucianist culture1 also hinder the development of wholesale immigration. While this state of affairs is not likely to change radically in the foreseeable future, as China continues its rise as a global economic and political power the numbers of people travelling to the country are likely to increase and the issue of immigration law will grow in importance.

In the past three decades an ever-growing number of laws pertaining to immigration have entered onto the statute books and Chinese immigration law is becoming complex and mature. Very broadly, Chinese citizens may travel to and from China without any form of restriction, while anyone else who wishes to enter China either on a temporary or permanent basis must obtain a visa and resident permit. There are, however, more than ten different kinds of Chinese visa and resident permit, each with its own rules for eligibility. Legal remedies and procedural guarantees are available where these rules are not met. for this reason, it is especially important that interested parties have a thorough understanding of the current framework of national Chinese law vis-à-vis immigration.

In this introductory chapter I will provide some basic facts about China, an overview of the recent history of immigration in the People’s Republic, and a broad survey of its national immigration laws, together with a look at the international conventions on immigration to which China is party. Subsequent chapters will look at key aspects of the national legislation in much more detail.

The People’s Republic of China: Basic Facts

The People’s Republic of China (PRC), with its capital in Beijing, was founded on 1 October 1949. China is located in the east of the Asian continent, on the western shore of the Pacific Ocean. China is the world’s most populous state with a population estimated to stand at about 1.3394 billion (2010), about one-fifth of the world’s total population. Most of the population of China lives around the middle and lower reaches of the Yellow, Yangtze and Pearl rivers, and in the Northeast Plain. About 91.6 per cent of Chinese people are Han. The non-Han population includes 55 ethnic minorities, of which the major groups are the Zhuang, Manchu, Hui, Miao, Uygur, Yi, Tujia, Mongolians and Tibetans. The population speaks one or more of the following languages or dialects: Standard Chinese, or Putonghua (based on the Beijing dialect), Yue (Cantonese), Wu (Shanghainese), Minbei (Fuzhou), Minnan (Hokkien-Taiwanese), Xiang, Gan and Hakka, as well as minority languages. China has a landmass of 9.6 million square kilometres, making it roughly the same area as the continental United States. China is made up of 23 provinces, five autonomous regions and four municipalities directly under the Central Government, plus the Special Administrative Regions (SARs) of Hong Kong and Macao. The Chinese currency is the renminbi, or yuan.

Economically extremely backward before 1949, China has today become one of the world’s major economic powers, while the overall living standard has reached that of a fairly well-off society. Nonetheless the massive population and geographic scale of the country mean that there are wide regional disparities in wealth. The Chinese Government has strengthened and improved its macro-economic control and China’s economy has continued its rapid growth into the twenty-first century. The gross domestic product (GDP) for 2009 amounted to ¥33.5353 billion, 8.7 per cent higher than the previous year. According to the exchange rate and population at the end of 2009, China’s GDP equated to US$4,911.3 billion, and US$3,679 per capita.

China has the largest communist system in the world. The Communist Party of China (CPC) is the country’s sole political party in power. Top legislative power belongs to the National People’s Congress (NPC) and its Standing Committee. Representing the people and every level of people’s congresses in China, the NPC supervises all State-level institutions. Its powers include electing the President of China. The State Council, which is the cabinet or chief administrative body of the PRC, includes the heads of all governmental agencies. The Chinese People’s Political Consultative Conference (CPPCC) is the top advisory body. Representing all ethnic groups and a broad range of political and special-interest groups, the CPPCC provides advice on social issues and exercises democratic supervision over the Government. China pursues an independent foreign policy, the fundamental objectives of which are the maintenance of world peace and the promotion of common development.

Confucianism dominates Chinese society. Individuals, under Confucianism, are inclined to integrate into society, respect others, and show loyalty to China and filial piety to parents. Chinese culture is therefore a culture oriented towards duty. Agrarian society, out of which Confucianism was born, is still an important part of the cultural fabric of China, with a proportionately large agrarian population and output. The number of religious adherents in China is estimated to be well over 100 million, most of whom are Buddhist. Other major religions are Daoism, Islam and Christianity in both its Catholic and Protestant forms.

Chinese constitutions have been formulated successively in 1954, 1975, 1978 and 1982. The present Constitution was adopted in 1982 and has since been amended four times, most recently on 14 March 2004. Conflicts between Chinese immigration laws relate to the internal functioning of the administrative arms of government, their interpretation of the rights and obligations and penalties in primary legislation, and, perhaps more deeply, the ethical and social foundations of the whole field of law.

Contemporary Immigration to China

Owing to China’s strict controls on those entering the country, the percentage of visiting aliens as a proportion of the total population is very low. In 2006, 2007, 2008 and 2009, 44.24 million, 52.07 million, 48 million and 43.72 million aliens entered into and exited from China, accounting for respectively 3.36, 3.94, 3.61 and 3.28 per cent of the whole population.

Nonetheless these figures represent a massive rise in alien visitor numbers when compared to earlier periods in the history of the People’s Republic. In 1978, as a result of Western prohibitions, UN sanctions and China’s own closed-door policy, only 229,600 aliens entered into China,2 representing a proportion scarcely above 0 per cent of China’s total population at that time. The number of aliens entering China rocketed to 20.95 million in 2009, 91 times the number in 1978. The amount of aliens entered into China increased 12.3 times from 1978 to 1991.

The average annual rate of increase in the numbers of aliens entering into China was 16.24 per cent during the whole period from 1978 to 2009. However, it needs to be kept in mind that the annual rate substantially changed in some years in which special events occurred. Initially, the increase was driven by China’s embarkation on a period of reform and opening up in 1978: in 1979 the number of aliens entering the country leapt by 57.84 per cent to 362,400, the highest increase rate during the entire 1978–2007 period. The second highest rate of increase – 55.10 per cent – occurred between 1990 and 1991 during which time China officially embraced the market economy system. On the other hand, significant events occasionally negatively impacted the amount of aliens entered into China. In 1989 when the Tiananmen Square Event occurred it significantly decreased by 20.69 per cent to 14.61 million, while over 2002–2003 the rate was down by 15.15 per cent (to 11.4029 million) due to the outbreak of the Severe Acute Respiratory Syndrome (SARS). The 2008 world economic crisis similarly drove the numbers of aliens entering China down – by 6.85 per cent to 24.32 million in 2008 and by 13.8 per cent to 20.95 million in 2009.

According to the National Bureau of Statistics, in total 243.126 million aliens entered China between 1979 and 2009. During this period Asians and Europeans made up the largest proportion, representing 59 and 25 per cent of the total respectively. Africans and Latin Americas accounted for the smallest, accounting for just 1 per cent between them. This distribution remained roughly the same in 2009. The top ten countries sending people to China are Japan, South Korea, Russia, the USA, Malaysia, Singapore, Vietnam, Philippines, Burma and Mongolia.

China began publishing data for ‘reason for entry’ into China in 2001. Only five categories are recognized: meetings and business; visiting friends and relatives; employment; travel; and other. Based on the total data of aliens entered into China from 2001 to 2009, the average percentage for aliens entering China for meetings and business was 64 per cent and for visiting friends and relatives 24 per cent. Comparatively few aliens entered into China for employment, travel and permanent residence.

Historical Legislative Background

The Republic of China, 1912–1949

During the Republic aliens in China were divided into aliens whose original state had signed a consular jurisdiction treaty with China [Youyue Guo], those who belonged to a state that had not [Wuyue Guo], and those who belonged to a state that was about to sign a new consular jurisdiction treaty [Jiuyue Yifei Xinyue Weiding Guo]. The Minguo Government had different policies for each category of alien – for instance, cases pertaining to Youyue Guo aliens and Wuyue Guo aliens were heard separately.

During 1928–49 the Mingguo Government in Nanjing, which at this time controlled most of China, spared no effort in attempting to repeal the consular jurisdiction enjoyed by Youyue Guo aliens and the semi-consular jurisdiction enjoyed by Wuyue Guo aliens. The Rules on the Civil and Criminal Procedures for Hearing Aliens Whose Original State Had Not Signed a Consular Jurisdiction Treaty with China 1919 was promulgated to try to restore Chinese jurisdiction over aliens whose original state had not signed a consular jurisdiction treaty with China. Other relevant laws included the Rules on the Management of Aliens Whose Original State Had Not Signed Consular Jurisdiction Treaty with China 1919 and the Provisional Measures Applying to Aliens Whose Original State Had Not Yet Signed a New Consular Jurisdiction Treaty with China after Repealing Prior Relevant Treaties 1930.

On 28 December 1929 the Mingguo Government in Nanjing published a decree requiring aliens in China to abide by Chinese laws. According to the Regulations for the Implementation of the Management of Aliens in China 1930, China now had jurisdiction over all aliens in China. Chinese procedural laws were applicable to all foreign cases in which aliens were the accused. Unfortunately, the Regulations 1930 failed to make much impact because of resistance from the West.

The two world wars, however, offered China opportunities to end Western consular jurisdiction. After the First World War, Germany and Austria, as defeated powers, effectively lost consular jurisdiction in China. The United Kingdom and the United States of America relinquished their consular jurisdiction on 10 October 1942 with China’s access to the membership of the antifascist Allies. (It is worth noting that 1942 marked the centenary of the ratification of the Treaty of Nanking in 1842.) Other treaties relevant to the consular jurisdiction of other Western states (including France, Belgium, Norway, Brazil, Sweden, the Netherlands, Switzerland, Denmark and Portugal) were subsequently repealed in 1943. Since this time, Chinese law has been applicable to all judicial cases involving aliens.

The Mingguo Government in Nanjing also established systems for both the inspection of aliens’ passports on entry and the repatriation of aliens under the Rules on the Inspection of Aliens’ Entry Passports 1930 and the Detailed Measures for the Implementation of the Rules on the Inspection of Aliens’ Entry Passports 1930, as well as under local detailed rules. Furthermore, the Mingguo Government took measures to control the residence and exit of aliens. The Rules on the Exit, Entry and Residence of Aliens within the Territory of the Republic of China was promulgated on 14 November 1944, the eve of the Chinese victory in the Second Sino-Japanese War. Under the Rules 1944, aliens in China had to apply for a residence permit from the local authorities and also had to apply for an exit visa, surrendering their residence permit at the same time.

The People’s Republic of China, 1949–1977

The period from 1949 to 1977 marks the beginning of the People’s Republic of China (PRC), through to the introduction of significant reforms and the ‘opening up’ of China in 1978. During this period alien entrance into China for non-official affairs was extremely restricted. China’s restrictive immigration policy was initially motivated by the CCP’s anti-foreigner policies. According to the Instruction of the Central Committee of Chinese Communist Party on the Policy Regarding the Treatment of Aliens in China 1948, ‘the Chinese Government and army will have a friendly policy towards aliens in China. However, more watchfulness and measures are needed to prevent certain aliens from spying on, destroying and interfering with Chinese internal affairs.’

Hostility towards China by many countries further consolidated China’s restrictive immigration policy. This was especially true of Western countries, such as the USA and Australia, whose governments were suspicious of communist sympathizers, especially during the ‘Malay Emergency’ of 1948–60 and the 1962 Sino-Indian War. China was still sanctioned under the decree of the UN.3 In China, too, a ‘...