Int. Migration & Integration
DOI 10.1007/s12134-009-0105-0
Changing Chinese Migration Law: From Restriction
to Relaxation
Guofu Liu
# Springer Science + Business Media B.V. 2009
Abstract This paper offers new insights into Chinese migration law since the
establishment of the People’s Republic of China in 1949, set against a backdrop of
briefly examined historical developments in international migration law. Despite
significant changes during its years of reform and opening up—with the massive
influx of foreigners into, and exodus of Chinese citizens from, China—Chinese
migration law is still restrictive and unadvanced. As part of its reform and openingup policies, China has been relaxing its control on persons crossing its border, and
advancing its exit and entry administration. The paper also offers an exploration of
fresh perspectives on Chinese migration law’s history, including insights into the
comparative value—for Chinese migration law—of international migration law
experiences.
Résumé Cet article offre de nouvelles perspectives sur la loi chinoise en matière
d’immigration depuis l’établissement de la République populaire de Chine en 1949
et ce, dans le contexte d’un aperçu sur des développements historiques relatifs à la
loi sur la migration internationale. Malgré les changements significatifs qui ont eu
lieu pendant les années de réformes et d’ouverture, et en dépit de l’afflux immense
d’étrangers vers la Chine et l’exode de citoyens chinois, la loi chinoise en matière
d’immigration demeure restreignante et rétrograde. Dans le cadre de ses réformes et
ses politiques visant l’ouverture, la Chine relâche son contrôle des mouvements
transfrontières et fait avancer les conditions d’entrée et de sortie. Cet article propose
de nouvelles perspectives sur l’historique de la loi chinoise en matière d’immigration, y compris une approche originale quant à la valeur comparative des expériences
relatives à la loi sur la migration internationale.
Keywords China . Migration law . Historical development . Reform .
Restriction and relaxation
G. Liu (*)
Law School, Shantou University, Shantou, China
e-mail: [email protected]
G. Liu
Mots clés Chine . loi en matière d’immigration . développement historique . réforme .
restriction . relâchement
Introduction
Much of the literature reviewed on Chinese migration law in China concerns
government policies and statistics. Some studies regarding Chinese migration law
have been conducted in China. However, a comprehensive study coupled with
international experiences in this field is in demand (Wong 1996; Committee of Exit
and Entry Administration under Chinese Association of Police 2001; Skeldon 2008).
The main factor contributing to a lack of a comprehensive study is that both
migration law and migration law research are relatively new areas in China, though
China has been developing its exit and entry administration law since 1949, in which
the People’s Republic of China (PRC) was established (Xiang 1998; Wong 2001).
The history of migration law in China has been quite brief, and, in fact, the terms
“Chinese migration law” are mainly used by Chinese scholars to describe the laws
regulating international migration. There is no legal definition to regulate the various
categories of international migration. In Chinese tradition, all Chinese citizens going
abroad are emigrant (Chuguo Renyuan). Those going abroad for tour, study, and other
temporary residence are temporary emigrant (Linshi Chuguo Renyuan) and those going
abroad for permanent residence are immigrant (Yimin). There have been some recorded
attempts to precisely stipulate migration and draw up a distinct code governing
international migration matters. However, 2001 exit and entry administration reforms do
not introduce the specific notions of “Chinese migration law.” Instead, the substance of
Chinese migration law is mainly regulated by statutes governing exit and entry (Yu and
Gong 1997).
China is now a migration source, transit, and destination country, and it needs a
migration framework to match. In 2007, 34 million Chinese went abroad and 8.5 million
Chinese visas were issued to foreigners (Best 2008). It is important to carefully examine
Chinese migration law from 1949 to date to make a valid observation about existing
deficiencies and future trends. This paper will focus primarily on development since
1978, but will briefly consider the period between 1949 and 1978 to provide an essential
backdrop against which the reform strategy can be viewed. 2001 exit and entry
administration reforms and post-2001 reforms will be carefully analyzed to understand
current Chinese migration law. This paper will lastly provide objective comments on
Chinese migration law’s achievements and deficiencies and explore its possible future,
based on analysis of contemporary experiences in international migration law.
Chinese Migration Law (1949 to 2001): From Prohibition Policy to Relaxation
Policy
1949 to 1957: Establishment of a Restrictive Migration Framework
The development of the exit and entry legal system during the period from 1949 to
1957 was encouraging, because exit and entry intention was respected and
Changing Chinese Migration Law: From Restriction to Relaxation
assessment for application for exit for private affairs was lenient. However, statutes
promulgated during this period were very general and simple in form. One
regulation was usually no longer than 200 Chinese characters. From a legal point
of view, these might be regarded as directions rather than laws. The effect of
restricting limits, household registration, and a simplified form of regulations on exit
and entry remains to date. The regime established in this period laid the foundation
and direction for later exit and entry administration.
In the period from 1949 to 1957, most Chinese citizens who exited and entered
were huaqiao1 and Hong Kong (HK) and Macao residents, owing to their financial
capacity and/or necessity for exit and entry. Encouraging huaqiao to return to China
to assist in China’s reconstruction was a foremost legislative purpose during this
period. From 1949 to 1953, the number of huaqiao returning to visit relatives and for
permanent residence increased 15–20% annually (Hefei Local Chronicles Office
2001). In addition, where a destination country hindered a huaqiao from returning,
they could indirectly return to China through HK or Macao. Simultaneously,
unyielding efforts were made to negotiate with the West, especially with the USA, to
permit huaqiao return to China. The Treaty on the Issues Regarding to Civilian
Returning to China between PRC and USA was reached in 1955.
Chinese citizens and aliens needed to apply for exit permission for going abroad.
According to Article 3 of Provisional Measures on the Entry and Exit National
Border of Huaqiao 1951, “huaqiao exiting the country must apply for the Huaqiao
Exit Permit (Huaqiao Chujing Tongxingzheng) upon the authority of the document
of proof prescribed by their township government.” More detailed restrictions were
adopted to control aliens leaving China. According to Articles 2 and 4 of Provisional
Measures on Exit of Aliens in China 1954 (PRC), “aliens exiting the country must
lodge an exit application in person to the public security authorities of the
municipality or county in which their residence is registered.” After examining the
prescribed evidentiary document, the provincial public security authorities would
issue an Exit Visa to aliens whose country had a diplomatic relationship with China,
and Exit Certificate (Chujingzheng) to aliens whose country had no diplomatic
relationship with China.
From 1957 onwards, the administration of citizens’ exit and entry, passports, and
visas, previously the responsibility of the Ministry of Foreign Affairs (MFA) and
local foreign offices, devolved to the Ministry of Public Security (MPS) and local
public security authorities in accordance with the Preface and Article 1 of the
Circular of the State Council on the Unified Responsibility of Ministry of Public
Security Regarding the Administration of the Exit and Entry for Private Affairs of
Citizens 1956 (PRC). A national exit and entry administrative authority centered
around provincial departments was established.
Events such as land reform, which occurred after the establishment of the PRC,
had a far greater influence on Chinese migration than any events during the period
1911–1949. Persecution, harassment, and discrimination against wealthy Chinese
1
Huaqiao refers to Chinese citizens born in China and legally residing outside China. See Article 2 (1) of
the Law on Protection of the Rights and Interests of Returned Chinese Citizens who Legally Resided
Outside of China and the Family Members of Chinese Citizens who Legally Resided Outside of China
(Amendment) 2000 (PRC).
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people forced them to exit. There began a mushrooming outflow of wealthy Chinese
people seeking to avoid being persecuted as landlords and capitalists in the years
after 1949 (Brown and Foot 1994). Against an unfavorable backdrop at home,
wealthy huaqiao began to give up intentions of returning to China and tried to bring
their families to join them overseas. This partially accounts for the imposition of
stricter controls on migration.
Household registration (Hukou) established in 1951 is closely linked to exit and
entry administration in China. According to Article 2 of the Provisional Regulations
on Administration of Urban Household 1951 (PRC), persons residing in urban areas
were subject to control. The new system was intended to be temporary and imposed
no limits on movement within the territory. However, in 1955, the scope of
household registration was extended to the whole of China, including rural areas,
and the system was made permanent. These regulations essentially laid down the
limits of freedom of movement. Chinese residents could not apply for exit
permission or a passport at public security authorities in which their residence was
not registered.
To alleviate the economic pressure of resultant excessive population growth, the
HK government repealed the policy of free entry for Mainland Chinese into HK in
1951. The new policy regulated that, from May 1951, Chinese citizens in the
Mainland could not enter HK without a Chinese government travel certificate
(Lvxing Zhengmingshu) and permission from HK immigration authorities. The
Chinese government provided a positive reply to HK’s immigration policy change.
From February 1952, Chinese citizens in the Mainland who entered HK and Macao
must have an Exit or Entry Pass (Churujing Tongxingzheng) and go through
Gongbei Port according to the Proclamation on Exit and Entry of Seaside Travellers
1951 (Guangdong, PRC).
1957 and 1978: Development of a Restrictive Migration Framework
China’s communist policies, poor economic conditions, political instability, and
hostility towards foreign countries brought an end to positive trends towards
development of a regulatory migration framework. From June 1957, the Chinese
government introduced policies to suppress right-wing political opposition.2 Many
of the opponents were overseas-educated Chinese, possibly with overseas family
members. They were sent to labor camps in remote rural areas and severely restricted
from leaving China. Anyone who wanted to leave China generally remained silent,
out of fear of being regarded as right-wing political opposition.
During this period, China adopted a highly concentrated emigration system,
which adversely affected international migration. Article 7 of the Regulations for the
Administration of Entry, Exit, Transit, Residence and Travel of Aliens in China 1964
(PRC) regulated all aliens to apply for a visa for entry, internal travel, and exit
purposes. During the Cultural Revolution between 1966 and 1976, any person who
applied to leave China was regarded as being dissatisfied with the Chinese socialist
system and suspected of having colluded with a foreign country to carry out illicit
2
Right-wing political opposition refers to people who oppose Marxist, people’s democratic dictatorship,
communist system, state ownership, and one-party reign of the Chinese Communist Party in China.
Changing Chinese Migration Law: From Restriction to Relaxation
activities against China. The population of China reached 904 million in 1974,
24.64% more than that of the 725 million in 1965 (National Bureau of the Statistics
of China 2003). Additionally, 1.6 million people exited and entered China in 1974,
26% less than in 1965, although more than triple the number in 1951; this is a
retrogress of international migration (Division of Border Control of Bureau of Exit
and Entry Administration, Ministry of Public Security 1999).
China’s restrictive migration policy was initially motivated by hostility towards
China on the part of many countries, most notably western countries, such as the
USA and Australia, where the governments of the time were suspicious of
communist sympathizers; Malaya after the 1948–1960 “emergency”; and India after
the 1962 Sino-Indian War. China was still subject to sanctions decreed by the UN. In
such circumstances, there was almost no demand for exit and entry for private
affairs. A “one-nationality” policy was officially recognized in the Treaty of China
and Indonesia on the Issue of Dual Nationality, which was ratified by China and
Indonesia in 1958 and effective in 1960. This policy, which still remains in force,
was designed to encourage huaqiao to assimilate into their local foreign community
and abandon their Chinese nationality.
To efficiently unite and attract huaqiao, the lenient assessment policy on the exit
of returned huaqiao and their family members was re-emphasized, and strict
practical control over the exit of returned huaqiao and their family members was
relaxed after 1971, when the Rules of Assessment and Approval of Administration of
Exit of Huaqiao and Their Family Members (PRC) was promulgated. On average,
over 3,600 Chinese citizens were approved to exit each year from 1971 to 1977 in
Guangdong, which is one of the provinces with the most huaqiao (Guangdong Local
Chronicles Office 2008). During this period from 1949 to 1978, even though its
population swelled in the same period from 400 million in 1949 to two billion in
1978, China only approved about 7,000 annual exits abroad for private affairs
(Xinhua News Agency 2002).
1979 to 1985: Start of Reform of the Restrictive Migration Framework
Since 1978, China has adhered to a policy of reform and opening up, with a focus on
the establishment of a socialist market economy. This resulted in significant
economic achievements. Nevertheless, special exit and entry laws were not
promulgated until 1985. During this period, the Chinese government began to
reform the exit and entry administration and started to relax restrictions on
international migration.
Limits were primarily eased on the right to leave of huaqiao and their families
who had re-entered China in June 1978. Most significantly, exiting was firstly
recognized as a legitimate right of citizens in China. Additionally, the government
commenced the reform of the exit and entry administration with the publication of
the Suggestions for Relaxing the Conditions of Examination and Approval of Exiting
China for Private Affairs 1984 (PRC) and the Circular on Seriously Carrying out the
File of Gongfa (Jing) [84] 59 and Further Relaxing Exiting China for Private
Affairs (Abstract) 1984 (PRC). Article 1 of the latter instrument underlined the point
that administrative authorities had to respect and safeguard the lawful rights and
interests of Chinese citizens wanting to exit China, to encourage and assist them in
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traveling abroad, and to better consider the applicant’s perspective when processing
applications.
Draconian exit restrictions were still effective. Article 8 of the Passport and Visa
Regulations 1980 (PRC) confers a right on Chinese citizens with specific
qualifications to obtain a passport. Individuals exiting China for public affairs had
to undertake strict examination and hand in their passport for unified administration.
In fact, these limits on exit for public affairs had the effect of limiting almost all
individuals likely to exit China, given that only people employed by the government
or a state-owned enterprise could afford to travel abroad.3 Notably, it was more
difficult to obtain a passport if the applicant was a member of the Communist Party
of China (CPC). A member of the CPC exiting abroad for private affairs had to
lodge the application with the work unit’s Party Committee and local public security
authority. After approval was obtained from both of these authorities, the application
was reported to senior Party Committee. An ordinary passport could then be granted.
Given that Party members occupied all senior government positions and most
positions in state-owned enterprises and institutions, these limits effectively
restricted the exit of China’s elite for private affairs.
In 1980, the exit visa system, an obviously outdated visa system by international
standards, was established. According to Article 2 of the Passport and Visa
Regulations 1980 (PRC), the exit visa is a permission document that would permit
Chinese citizens and aliens to exit the Chinese border. Article 9 required Chinese
citizens, overseas returnees, and aliens to apply for a visa to exit China.
The Law of Nationality (PRC), introduced to avoid diplomatic issues with
countries in which a Chinese national was a resident and also a citizen, was enacted
in 1980. It summarized the nationality policy that had operated since 1949 and, in
particular, Article 3 expressly refused to recognize dual nationality. However, the
policy significantly undermined the ability of huaqiao to maintain close links with
China, as they needed to apply for a visa to settle in the country.
In hindsight, genuine liberalization of exit and entry during this period was quite
limited, despite improvements in exit and entry administration, and advances in exit
and entry administration legislative thinking were not executed with due care.
Outdated passport, visa, and nationality administration continued to be a dominant
theme. The aforementioned economic development and reform measures had seen a
marked increase in the number of people entering and exiting China, with
approximately 50,000 individual applications to exit for private affairs being
approved annually from 1979 to 1985 (Xinhua News Agency 2002).
1986 and 2001: Development of Reforms of the Restrictive Migration Framework
From 1986 to 2001, over 400 statutes paved the way for comprehensive governance
of exit and entry, mainly through the MPS. These laws gradually lifted restrictions
placed on Chinese citizens exiting China, encouraged the return of huaqiao, eased
3
In 1985, the average annual per capita income for a rural person was C¥574.31 ($US 66.18), whereas the
average annual per capita income in urban areas was C¥748.92 ($US 90.56). This was calculated based on
the data from the National Bureau of Statistics of China at “Per Capita GDP from 1952 to 2002” (1952
Nian – 2002 Nian Renjun Guomin Shengchan Zongzhi), http://www.menet.com.cn/shuju/gmjj/gmjj-rjgdp.
htm.
Changing Chinese Migration Law: From Restriction to Relaxation
restrictions on entry and permanent residence of aliens, and established migration
intermediary agencies.
Legal recognition of Chinese citizen’s right to leave and return (RLR) was
resumed in February 1986, when the Law on the Control of Exit and Entry of
Citizens 1985 (PRC) came into force. Article 1 of the Law on the Control of Exit and
Entry of Citizens 1985 (PRC) regulated that it was formulated with a view to
safeguarding the legitimate rights and interests of Chinese citizens with respect to
their exit from and entry into China’s territory and to promoting international
exchange. However, the lack of express recognition of aliens’ RLR was not changed
according to Article 1 of the Law on the Control of Entry and Exit of Aliens 1985
(PRC) “for the purpose of safeguarding the sovereignty and maintaining the security
and public order of PRC and facilitating international exchanges.”
Although the provisions of these two laws provide for the formulation of later
relevant laws, their contents were generalized and ambiguous. The enactment of
Detailed Rules for the Implementation of the Law on the Control of Exit and Entry of
Citizens 1986 (PRC) and Detailed Rules for the Implementation of the Law on the
Control of Entry and Exit of Aliens 1986 (PRC) did not resolve the issue of
ambiguity. The degree of ambiguity fostered the enactment of a large number of
subsidiary orders, directives, rules, and circulars. Based on the incomplete collection
of the Bureau of Party and Government Foreign Affairs Cadre, under the
Organization Department of the Central Committee of the CPC, 42 ministries,
committees, state bureaus, courts, and banks promulgated 235 orders, directives,
subsidiary rules, and official documents and letters during the period between May
1980 and July 1994. These subsidiary regulations suggest that, during this period,
the legislative process was not unified. Additionally, the public had little access to
government policies and rules because there was no freedom of information
legislation. Consequently, a large number of unpublished official documents formed
a bureaucratic barrier to migration.
Chinese citizens needed to go through complicated formalities when applying for
a passport, including acquiring approval from their work unit and producing
household registration documents, an invitation letter from overseas, and a financial
guarantee for the duration of the visit. Having close relatives abroad was almost a
prerequisite for obtaining permission to travel abroad. Fortunately, the restrictive
migration framework was to undergo reform.
In 1986, the effectiveness of the first round of reforms was characterized by the
Law on the Control of Exit and Entry of Citizens 1985 (PRC) and the Law on the
Control of Entry and Exit of Aliens 1985 (PRC). The system of entry–exit visas for
citizens was hereby replaced with an Exit Registration Card, and the Exit Visa for
aliens was abolished. The second round of reforms took place in 1992, in which
China set up the goal of establishing a socialist market economy. At this time, the
registration card for exiting a second or more times was abolished. Intermediate and
senior science and technology personnel no longer needed to provide a certificate of
approval from a provincial, regional, and municipal level of government with their
application. The third and fourth rounds of reforms occurred in 1996 and 2000,
respectively. With the third, part Chinese and huaqiao who had returned to China—
as well as their families—no longer needed to submit a foreign letter of invitation
with their application to leave. The fourth permitted citizens to apply for a passport
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upon evidence of a foreign exchange deposit, rather than a certificate from a work
unit.
Since the Tiananmen crackdown in 1989, the number of Mainland Chinese
students in Western universities who became political or economic exiles swelled.
This represented the biggest wave in Chinese migration since the gold rushes of the
nineteenth century. The expansion of the huaqiao network ensured the feasibility of
further development of international migration in China in the near future.
The legal reform of exit and entry administration during the period from 1986 to
2001 promoted the development of international migration. From 1986 to 2001, the
average annual exiting Chinese increased to 1.1 million. Dating from 1989, 1.334
billion entries and exits have been recorded by China’s exit and entry administration,
representing an annual growth of 27.91% (China Daily 2001).
The rapid growth in the number of people exiting China resulted in the
development of a migration intermediary service market, the formation of which,
as a result of complex economic and socio-ideological causes, has been chaotic.
Provisions for the Administration of Overseas Employment Intermediary Agencies
1992 (PRC), Regulations for the Administration of Travel Agencies 1996 (PRC), and
Regulations for the Administration of Intermediary Agencies for Self-Funded Study
Abroad 1999 (PRC) were enacted to regulate the industry. The new regulations
developed a system of reserve funds related to overseas employment, overseas study
intermediary agencies, and overseas travel agencies.
By 2001, some important achievements were reached in the protection of the
RLR, despite its motley historical record. Nevertheless, restrictions on international
migration are still severe, and issues fundamental to the system of migration control
remain. Most reform measures failed to integrate new policies into the Law on the
Control of Exit and Entry of Citizens 1985 (PRC) and the Law on the Control of
Entry and Exit of Aliens 1985 (PRC) and its detailed rules of implementation.
Consequently, the achievements are possibly unstable in the sense that their legal
validity is in dispute.
2001 Exit and Entry Administration Reforms
Context and Content of the 2001 Exit and Entry Administration Reforms
The fundamental reason for the 2001 exit and entry administration reform was that
the strict controls were incompatible with China’s explosive economic and social
development. China’s accession to membership of the World Trade Organisation
(WTO) sparked exit and entry administration reform with the government widely
recognizing the need to simplify procedures.
With the exception of two reform goals related to the simplification of Chinese
tourist group visas and permanent resident visa applications, the four remaining
reform goals were pertinent to emigration. The “passport-on-demand” policy is
central to the reforms. By 2005, Chinese citizens in 193 large- and medium-sized
cities were to be able to obtain a passport merely by presenting their identity cards
and household registration documents to the appropriate authorities. The key to this
measure was that applicants no longer needed to present written permission from
Changing Chinese Migration Law: From Restriction to Relaxation
work units—thereby better protecting individual privacy. The other three reform
goals were cancelation of the requirement of providing invitation letters when
applying for passports, establishment of special channels at airports for Chinese
citizens, and relaxation of restrictions on traveling to HK or Macau.
To reduce possible social disruption due to the reforms, reform measures were
gradually introduced in three rounds in 2002, 2003, and 2004. The 2002 reform
measures focused on pilot programs and trial implementation of reform strategy. By
the end of 2002, the policy had been introduced into 24 large- and medium-sized
cities, including Shanghai, Nanjing, Qindao, and Xiamen, whereupon passport
applications increased by 30% to 50%.
The 2003 reform measures aimed to deepen and extend the 2002 reform. With
respect to passport applications, residents in 100 designated large- and medium-sized
cities were allowed to apply directly for a passport on demand, using their identity
card and residence booklets. Working citizens no longer required approval from their
work unit to apply for a passport, unless they were serving government officials or
intermediate or senior management in state-owned enterprises or CPC members.
Additionally, provincial governments could implement different reform measures to
implement national reform strategy according to their individual needs (Xinhua
News Agency 2002).
Measures were undertaken to further deepen the reforms in 2004. The passporton-demand policy was expanded to 80% of large- and medium-sized cities, mainly
in the central part of China. A long-awaited “green card” system was introduced to
grant permanent residence permits to aliens in August 2004. Residents from
Guangzhou, Shenzhen and Zhuhai, Shanghai, and Beijing could apply for travel
permission to the HKSAR and MSAR on an individual basis by showing their
identity card and resident booklets. For Chinese who had gone abroad and lived
overseas for more than a year, the stipulation that their household registration be
canceled was rescinded.
Effects of the Reforms
Reform measures have recorded improvement of exit abroad applications in China.
Before examining the effects of 2001 reforms, it is useful to re-examine the impact
of prior reforms on average exits and entries between 1949 and 2001. In 1978, at the
start of China’s reform and integration into the world economic system, there were
14 per million exits and entries. In 1988, 2 years after the enactment of exit and entry
laws, there were 62 per million. In 2003, the second year of the reforms, the number
of exits and entries was 30,538 per million, despite the SARS outbreak in the first
half of that year. This figure represented a 20% increase in the number of citizens
crossing China’s borders in 2002. However, the level of international migrants to
China is still considerably lower than that in many other parts of the world.4 In 2000,
international migrants comprised 0.04% of the Chinese population. The average
rates in more developed regions, less developed regions, and least developed
4
International migrant refers to persons who currently reside in a country other than where they were
born, at Population Division of the Department of Economic and Social Affairs, the United Nations
(2002). International Migration 2002.
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countries were 8.739%, 1.452%, and 1.566%, respectively (Population Division
Department of Economic and Social Affairs, United Nations 2002). This shows that,
with the development of China, Chinese international migration should increase
further, and thus, more protection of international migrants’ rights needs to be done.
The effects of the administration’s 2001 exit and entry reforms on the future of
Chinese economy and society, and on Chinese global integration, are likely to be
subtle and lasting rather than instantaneous and short-term. The reforms may foster,
among individuals and governments, an awareness of and desire to protect the RLR.
Simplifying passport applications and processing may challenge some old thinking.
It may begin to be thought that applying to exit China is asserting a right, rather than
simply performing a duty, and that the process itself is designed to protect that right,
rather than simply to constitute an exit and entry control mechanism. This situation
has created a pressing demand to enhance relevant legislation and reduce
bureaucracy. Arguably, China must further relax exit and entry restrictions and give
effect to essential reform measures before it can achieve the goal of realizing the
protection of the RLR.
It must also be accepted that the reforms only benefit a small number of Chinese
people because public officials, or those involved in public affairs, are not subject to
the reforms. Among the people covered by the reforms, only those who can or will
travel abroad will be practically affected. Given China’s vast population and the
notion that lives on of a central empire, the proportion of the population who
actually can or will keep in touch with people in other nations is very small. In the
absence of migration and with many Chinese people on low incomes, these reforms
are not relevant to many ordinary citizens.
Deficiencies in the Reforms
Although 2001 exit and entry administration reforms have stimulated a remarkable
increase in the number of exits and entries, four key deficiencies must be borne in
mind. In the first place, as above, reforms are limited to private individuals not
involved in public affairs. The reforms relate only to applications for ordinary
passports for private affairs. Other passport categories, especially ordinary passports
for public affairs, have been excluded. This means that about 653 million people are
unable to take advantage of the reforms.
Secondly, the reform strategy does not apply to the whole system of
application for ordinary passports for private affairs. People with special status,
such as some government officials and managers of large- and medium-sized
state-owned enterprises and institutions, must still obtain permission from their
work units when applying for passports. According to statistics from Hainan
Public security authority exit and entry administration, 1% of the population, or
13 million people, fall into this category (Xinhua News Agency 2003). Not only
does that account for a large number of people, but the people affected make up
China’s elite. Additionally, reform measures are not applied to residents in small
cities and rural areas. Rural residents comprise 60% of the whole population of
China.
Moreover, prior exit and entry administration laws and regulations were not
amended upon the announcement of the 2001 reform measures. In pursuance of the
Changing Chinese Migration Law: From Restriction to Relaxation
2001 reform measures, the Exit Registration Card is no longer attached to passports.
However, according to Article 5 of Detailed Rules for Implementation of the Law on
the Control of Exit and Entry of Citizens (Amendment) 1994 (PRC), the exit and
entry administration is to attach an Exit Registration Card. The 1994 rules were
approved by the State Council and jointly promulgated by the MPS, the Ministry of
Education (MOE), and the Ministry of Communication. Within the Chinese legal
system, the 1994 rules prevail over 2001 reform measures. However, the later policy,
although invalid in theory, is executed in practice. The inconsistency violates Article
5, Clause 2 of the Constitution of the PRC (Amendment) 2004, which requires the
State to uphold the uniformity and dignity of the socialist legal system. The
inconsistency between laws and reform policy will undermine the authority of
the law and undermine public confidence that the administration will act in
accordance with the law.
Finally, these reform arrangements have affected the relationship between the
central authority and local authorities, undermining central authority. The Central
government is vested by Article 89 Clause 1(9) of the Constitution with the power to
control exit and entry. Even so, provincial governments often promulgate local
regulations and reform measures that actually amend national laws and regulations.
The infringement by provincial governments upon the central government powers
became a way of meeting regional or individual interests. It invades the applicants’
rights and interests as well as violates the central government’s power.
The Nature of the Reforms
Clearer insights into the nature of the 2001 reforms are required to predict the
future evolution of migration in China. The official media has accepted that the
reform strategy aimed to simplify exit and entry procedures or, more precisely,
to simplify procedures governing the exit of citizens, and the permanent
residence of aliens (People’s Daily 2003). Moreover, some scholars have asserted
that the reform strategy could play a catalytic role in a realization of the RLR
(People’s Daily 2002). It is accepted that simplifying the exit and entry procedure
helps to protect the RLR in China. However, the simplification should merely be
the means by which reform is achieved, rather than the nature of the reform. The
current approach—which regards to administrative simplification as the nature of
reform—attends to trifles and neglects the essential needs of citizens. With a
deepening of the reform measures, the awareness of the passport as a symbol of
prestige may be diluted, and the awareness of the RLR increased. More relaxations
will be seen in the reforms orientated towards simplifying exit and entry
procedures in the future.
Post-2001 Exit and Entry Administration Reforms
Since the 2001 reforms, three significant measures have been taken to continue to
relax the exit and entry restrictions: First, the Regulations for Examination and
Approval of Permanent Residence of Aliens in China 2004 (Permanent Residence
Regulations 2004) came into force as of 15 August 2004; second, the promulgation
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of the Passport Law 2006 came into force as of January 1, 2007; and third, the Bill
of the Law of the Administration of Exit and Entry (Exit and Entry Bill 2006) was
submitted to the State Council for review by the MPS in 2006. Against the backdrop
of significantly improving legislation in China, the trend towards perfect
international migration legislation is irreversible. The above two laws and one bill
symbolize the full commencement of international migration legislation in China. In
short, the post-2001 reforms are extremely significant steps in the history of Chinese
migration law, featuring accelerated relaxation of restrictions in concomitant
legislations. However, the weak points in migration legislation, such as lack of
precise legal structure, the absence of legislative techniques, and the existence of
loopholes, need to be frankly accepted.
Permanent Residence Regulations 2004
The Permanent Residence Regulations 2004 aimed to attract talents from the
global sphere capable of making significant contributions to particular fields of
great need. It also aimed to attract foreign investment and encourage wealth
investment in China. The 29-article set of regulations covers the prerequisites
for non-Chinese to apply for permanent residence permits, required supporting
documents, application steps to be followed, limitations of authority, and
revocation of eligibility. Aliens considered able to meet certain requirements
would be eligible for indefinite permanent residence in China and could be
granted the Certificate of Permanent Residence of Aliens (Waiguoren Yongjiu
Juliuzheng). The three specified migration categories are skilled migration,
business migration, and family migration.
As for skilled migration, according to Article 6 (1) (2) of the Permanent
Residence Regulations 2004, aliens
having assumed the posts of deputy general manager or deputy director of
plants or higher level posts or posts of associate professors or associate
research fellows and similar posts for the period of holding positions for more
than a continual four years, and the period of stay in accumulation being no
shorter than three years and having sound taxation record.
Pursuant to Article 7 of the Permanent Residence Regulations 2004, the eligible
work should be in relation to employment units meeting any of the following terms
and conditions:
1. Institutions subordinate to the various ministries under the State Council or to
the provincial-level people’s governments
2. Top tertiary educational institutions
3. Enterprises or institutions executing key engineering projects or important
scientific projects of the State
4. High-tech enterprises, encouraged types of foreign-invested enterprises, foreigninvested advanced technology enterprises, or foreign-invested export-oriented
enterprises.
For business migration, Article 6 (1) (1) of the Permanent Residence Regulations
2004 stated that aliens with three consecutive years of direct and stable investment in
Changing Chinese Migration Law: From Restriction to Relaxation
China while maintaining sound taxation records could apply for Chinese permanent
resident status. Article 7 detailed as follows:
The registered capital actually paid for investment in China by aliens mentioned
in Article 6 (1) (1) of this set of regulations should meet any of the following terms
and conditions
1. having made investment of over USD 500,000 in industries of encouraged types
as specified in the Catalogue of Industries of Foreign Investment released by the
State;
2. having made total investment of over USD 500,000 in counties in the western
part of the country or in counties which are major targets of poverty relief work
undertaken by the State;
3. having total investment of over USD 1 million in the central part of the country;
or
4. having total investment of over USD 2 million in China.
Regarding family migration, in the light of Article 6 (1), (5), (6), and (7) of the
Permanent Residence Regulations 2004
5. spouses of Chinese citizens or of aliens having obtained permanent residence in
China, whose marriage has lasted for five years, and who have lived in China
for five consecutive years, the annual stay in China being no shorter than nine
months, and who have stable and secure living status and places to live;
6. unmarried children aged under 18 who come to China to live with their parents;
7. persons having no direct relatives abroad entering China to live with direct
relatives in China, who are over 60 years old, have lived in China for five
consecutive years, the annual stay in China being no shorter than nine months,
and who have stable and secured living status and places to live.
The time period of a year mentioned in this article refers to the continuous period
of time prior to the date of application.
However, the above regulations are too general, have very strict limitations,
feature a major departure from accepted international practices, and do not mesh
with pertinent rules. As a result of these deficiencies, a very limited number of aliens
could get the Certificate of Permanent Residence of Aliens. Although there are about
260,000 foreigners in stable employment, according to the State Administration of
Foreign Experts Affairs, up to 30 September 2005, only 649 foreigners had been
granted permanent residence, with only 1,835 applications under assessment (China
Net 2005). The Permanent Residence Regulations 2004 failed to achieve the desired
result.
Passport Law 2006
Despite the fact that increasing numbers of Chinese have been going abroad for
study, business, or travel since 1978, the existing passport regulations have not been
keeping step with the changing situation. Official statistics show that China issued
more than 4.8 million passports in 2004, 200 times the number issued in 1978
(Xinhua News Agency 2006). Up to the end of 2006, more than 20 million Chinese
citizens had passports (China Daily 2006). In order to regulate the application,
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issuing, and management of passports, to guarantee rights and interests of Chinese
citizens exiting and entering China, and to promote intercourse with foreign
countries, the first Chinese passport law came into effect on 1 January 2007. It plays
an obvious role in enhancing the Chinese migration law system.
The categories of passports have now become consistent with international
practices. In accordance with Article 3 of the above law, China’s passports are
divided into three categories—ordinary passports, diplomatic passports, and service
passports. Ordinary passports for public affairs and ordinary passports for private
affairs are merged in the single category of ordinary passports. The law gives a new
definition of a passport’s validity period, which is 5 years for citizens under 16 years
of age and 10 years for those over 16. The law shortens the time limit for public
security authorities to deal with passport applications. People can receive their
passports within 15 days after they hand in applications—shorter than the current
30-day required waiting period.
In addition, the management of passports has been improved. The law imposes a
passport ban of 6 months to 3 years for those with a record of border control
offenses, illegal immigrants repatriated from abroad, and those staying and working
illegally abroad. It also imposes fines and prison terms on the producers and users of
fake and falsified passports. Passport applications will also be denied to criminal
suspects, litigants in ongoing civil cases, prisoners, persons who might sabotage
state security and interests if they went abroad, non-Chinese nationals, people
without identification, and those who falsify documents or give false information in
their applications.
Despite the above improvements, the deficiencies of the new law could not be
ignored. Firstly, the system of application for a passport based on acceptable reasons
is patchy compared with the international practice of application for passport as a
right, without needing to give a reason. According to Article 6 of the law, in addition
to submitting their identity cards, permanent residence booklets, and photos, Chinese
citizens applying for passports will also need to provide an explanation as to why
they need to travel overseas. Secondly, the right to leave was carefully considered;
however, the right to return was not. Without a solid human rights foundation, the
system, structure, and techniques of Passport Law 2006 could be questioned.
Thirdly, it specifically provides applicants whose passport applications are rejected
with a right to appeal for administrative review or administrative litigation. However,
ever-present issues of the independence and professionalism of the administrative
review authority have not yet been resolved. Without the complete remedy, the right
to be granted a passport could be jeopardized. Lastly, legislation techniques need to
be enhanced. Unacceptably vague terms such as “a short period,” “a remote region
or area without convenient transport,” and “under special circumstances” are
commonly used in this law.
Exit and Entry Bill 2006
The Exit and Entry Bill 2006 will integrate the Law on the Administration of the Exit
and Entry of Citizens 1985 with the Law on the Administration of the Entry and Exit
of Aliens 1985 and the Permanent Residence Regulations 2004 to increase the
efficiency and speed of lawful exit and entry to a level commensurate with the status
Changing Chinese Migration Law: From Restriction to Relaxation
of China as an open nation. The Exit and Entry Bill 2006 includes 94 articles over
seven chapters. The new law will address certain intractable exit and entry issues
which resulted in the lengthy and knotty drafting process (Ma 2008). Mr. Ma’s
experience with the drafting of the unified exit and entry law tells us that the
following issues must be carefully considered.
1. Legislative process—dimming or maintaining the administration of the draft of
exit and entry
2. Legislative thinking—control of exit and entry or the protection of the RLR
3. Travelling to or from HK, Macau, and Taiwan of Mainland Chinese—whether it
needs to be covered
4. Chinese emigration intermediate agency laws—whether it needs to be covered
5. Chinese exit and entry administrative system—how to reform
6. Refugees—the need for and feasibility of establishing a Chinese refugee system,
and how
7. Chinese visa system—how to develop it and why, especially permanent resident
visas
8. Chinese returning—how to encourage talented migrants of Chinese origin to
return
9. Linkage of different parts of the unified law
It would appear clear that a great deal of work still needs to be done as sufficient
and efficient preparation for the draft of unified exit and entry law in China.
Otherwise, it is possible that all the law-making efforts to date on this subject could
result merely in a newly established system that is neither advanced nor
comprehensive.
The Development of International Migration Law since 1949
An increased number of countries have formulated new migration policies to face
the trend of globalization and the reality of international migration since 1949. New
specific systems have been made for economic migration, family migration, refugee
migration, and student visas. There have also been major improvements mainly in
migration law theory, migration authority, migration services, and migration legal
techniques.
International Migration Law in General
Traditionally speaking, migrants consist of the poor in pursuit of a better life in other
countries, and migration countries are countries established by foreigners who
expelled or assimilated aboriginal people by war or peaceful methods, in order to
settle there. Migration law is only created by migration countries (Song 2006). After
the 1980s, an increasing number of countries accepted that migrants were people
looking for opportunity in the world as global citizens. International movement of
people would thus become the norm if differences in economy, polity, and culture
among countries did exist. From this perspective, migration countries are ones which
welcome or accept migrants from other countries, and are evolving from traditional
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one-nation countries into multi- nationality, ethos, and culture countries due to the
immigration and integration of foreigners. So, migration law exists not only in
traditional migration countries but in countries recognizing the above new concept of
migration (Grant 2006).
The change of migrants, migration country, and migration law contributed to the
change of international law in the areas of the RLR, law structure, legislative
expectation, and application methods. Respect and protection for the RLR have been
improved worldwide. The RLR has been affirmed as a fundamental human right in
several international instruments and constitutions of many countries. What are
permissible limits on the RLR then becomes a focal point in international migration
law. Freedom of movement was realized in some regions and industries such as
Europe and Asian Pacific business, which enhanced its development worldwide.
Influenced by the value expectation of national interest, international migration law
weights pragmatism over humanitarianism. The pieces of migration policy were
considered under the umbrella of the whole migration system. The quota of
economic migrants increased to attract skilled people. The simplification of the visa
application procedure commenced to be popular featuring online application in
traditional immigration countries.
Exit and entry administration laws and alien law are changing into migration law.
Non-traditional developed nations, newly developed nations, and less developed
nations have promulgated immigration laws such as Immigration Law 1998 (Italy),
Immigration Law 1999 (Republic of Korea), and Immigration Law 1994 (Cambodia)
based on exit and entry administration law or alien law. For effective management of
the whole stage of international migration, the management of citizenship, and
immigration was unified into one authority. The USA, Canada, Australia, and New
Zealand reallocated with migration authority being given to US Citizenship and
Immigration Services, Citizenship and Immigration Canada, Department of
Immigration and Citizenship Australia, and Immigration Services New Zealand,
respectively, in 2003, 1994, 1945, and 1987.
Migration Programs
Economic migration programs are becoming the core of migration law now. Since
the 1980s, traditional immigration countries have implemented immigration policies
designed to attract economic migrants such as entrepreneurs, scientists, and
professionals. A diverse group of non-traditional immigration countries, including
Italy, Portugal, South Korea, and Germany, boosted the numbers of economic
immigrants. Skilled migration schemes represent the foremost part of economic
migration programs. It has been accepted as a crucial channel for drawing foreign
skilled persons into Singapore, the UK, Germany, France, and other countries for
over 10 years. Business migration developed quickly since this type of scheme
began operating in 1986 in the USA. It serves to attract not only migrants but also
investment. Successful business migration schemes represent a positive merger of
migration policy and investment policy.
With the development of the economic migration program, the central position of
the family migration program was replaced by the economic migration program, and
its requirements changed. Financial capacity became one of the conditions of
Changing Chinese Migration Law: From Restriction to Relaxation
application for family migration. According to Immigration Law (Amended in 2002)
(Italy), the spouse and children of Italian citizens and permanent residents are not
eligible for family migration unless they have employment permission. In line with
Australian migration policy from July 2003, the parent migration program is
classified into normal and contributory parent migration. Applicants under
contributory parent migration pay $AU 25,000 to the Australian government and
receive priority processing in return. Migration Law (Amended in 2007) (Germany)
provided that relatives of German citizens and permanent residents who are from
Turkey and other developing countries must provide income to prove independent
financial capacity when applying for family migration.
Restrictions on refugee and humanitarian migration through legal techniques have
become quite common in both developed and developing countries (Population
Division Department of Economic and Social Affairs, United Nations 2002).
Refugees represent a sensitive and exigent issue for many countries, especially
developed countries. The international asylum regime prevailed from the early 1950s
through to the late 1990s, and eventually challenged the countries’ prerogatives to
decide on the recognition of asylum seekers. Extensive media coverage of the plight
of refugees has contributed to the politicization of international migration. However,
some analysts think that, regardless of whether migration has a positive or negative
effect, more developed countries will be unable to stop the arrival of desperate
migrants, and that only military intervention will prevent large numbers of poor
migrants from attempting to enter affluent countries, thus threatening those
countries’ security (Martin and Widgren 2002).
Student Visa
Student visa schemes were viewed as not only the permission for study (abroad) but
as the linkage point between education export and talent attraction. Foreign students
are usually permitted to engage in part-time employment and full-time employment
during study and vacation periods. After foreign students are awarded tertiary
educational qualifications, they are eligible to be issued employment visas for a year
or more in the USA, the UK, Germany, Holland, and HK. Applicants will be
allocated points for their local tertiary educational qualifications when they apply for
skilled migration in Canada, Australia, and New Zealand. Applicants directly from
foreign graduates are exempted from work experience requirements when applying
for skilled migration in Australia.
Migration Laws Techniques
Advancing migration law techniques featuring immigration quota, sponsor and
assurer, points test, labor market test and migration service management laid the
foundation for convergence of different countries’ migration laws. Immigration
quotas are accepted as a useful tool to control the number of immigrants. Normally,
the overall quota is divided into different migration program quotas. Immigrants’
living ability after arrival is partially ensured through the sponsor and assurer
system. Canada launched the first points test system in 1967. Australia launched its
points system in 1989, followed by New Zealand in 1991 and the UK in 2001.
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Demetrios G. Papademetriou argued that points and points-like systems are effective
in creating pools of skilled workers from which employers can hire some of the
skilled workers they need (Papademetriou 2007). The labor market test was
developed as an economic migration scheme to protect citizens’ working rights
and to recruit overseas skilled migrants with skills in high demand. Receiving
countries have tightened the management of immigration services. The immigration
service industry is already regulated in Australia and the UK. Canada and New
Zealand are developing a system that aims to provide a dependable mechanism to
prevent unscrupulous immigration consultants from using their fiduciary position for
their own profit, or mismanaging their clients’ immigration affairs.
Immigrant Integration and Nationality
Immigrant integration has evolved as an important means for realizing migration law
aims, although it is not a branch of migration law. Many countries recognized that it was
necessary for immigrants to integrate into the local community to resist exclusivity.
Otherwise, immigrants might remain as visitors in the hosting countries or circular
migrants, even triggering disagreements and conflicts with local residents. Three kinds
of measures were usually taken to integrate immigrants in international migration law.
The first one was to raise the requirements for immigration applicants to improve
their living capacity after arrival. The second was to provide full settlement services for
new immigrants to shorten their adaptation period. The third is flexible citizenship
which is occurring both within existing nation-states and in new regional entities such as
the European Union. Countries increasingly view flexible citizenship as an important
and practical tool to retain emigrants and attract immigrants. Recent North American
and European research indicates that immigrants quickly adopt many conventional
norms and values of the receiving society, while still maintaining a strong positive
valuation of their own culture and language (Newland 2003). Acknowledging the
realities of permanent residence abroad, and the process of accessing citizens’ rights in
receiving countries, many sending countries tend to stress the importance of legal
regulations that permit emigrants to qualify for foreign naturalization without
surrendering their original citizenship. The complex situation created by flexible
citizenship can be limited by bilateral and international conventions.
Perspectives on Chinese Migration Law
The latest development in international migration law provides an objective criterion
to which China should make reference and comparison. It is exigent on China to
systematically re-evaluate and reconsider Chinese migration law experiences from
1949 to date, and to take advantage of knowledge of international migration law
development in order to promote the transformation of Chinese migration law.
Chinese Migration Law in General
Chinese migration law needs to be well-designed to accommodate the rapidly
changing migration patterns that have emerged since reform and opening-up policies
Changing Chinese Migration Law: From Restriction to Relaxation
were implemented in 1978. The changing concepts of migration, migration
countries, and migration law will motivate China to carefully question their
understanding on all facets of exit and entry administration law. The orientation of
Chinese laws governing international migration firstly need to be transformed from
focusing on control over detached stages of international migration, such as exit,
entry, border inspection, or residence, into the administration of the whole process of
international migration. Then, current Chinese laws governing international
migration will be able to evolve gradually from exit and entry administration law
into genuinely realized migration law, following trends in international migration
law. There is a long way to go for China to realize the evolving and go to gain full
respect to protect RLR as the impetus of exit and entry administration law and
China’s plight of being criticized for its record regarding human rights.
Migration Programs
China’s economic migration system differs markedly from its counterpart in
international migration law. To start with, Chinese skilled migration limits its scope
to a perspective of position rather than occupation. China’s preferred view is rarely
recognized in international migration law, since position is too flexible to be
controlled. By contrast, occupation is more easily assessable and adjustable to meet
labor market demands. Moreover, only personnel employed in specialized enterprises, institutions, or tertiary educational institutions could be eligible. It should be
borne in mind that demands for skilled personnel in China are usually significantly
high in normal and developing enterprises, institutions, and tertiary educational
institutions. Furthermore, the requirements of recent work experience and residing in
China immediately prior to application are too strict to attract skilled personnel with
overseas work experience alone.
As for business migration, designating different parts of China for different
minimum prerequisite business migration investment amounts is an efficient way to
facilitate the allocation of investment. However, there appears to be no clear concept
of investment sources and means in the sense that those terms are used in
international migration law, where investment sources must be untainted and
transparent and where business, real estate, governmental bonds, or bank deposits
are possible means of investment. The requirement of a prerequisite 3 years’ direct
and stable investment in China is so strict that investors are virtually disqualified by
their lack of Chinese investment experience. In most countries, in places such as
Canada, Australia, New Zealand, HK, and Macao, local investment experience is, in
any case, deemed unnecessary. As for tax records, in international migration law,
more emphasis is placed on those of the country of origin than on those of the
destination country, while the opposite is the case in China’s migration law.
The issues of Chinese family migration mainly focus on partner migration. The
family reunion right should not be limited by financial hardship. Requirements of
stable and secure living status and place of domicile are usually for the assuror of the
applicant for partner migration. Any local resident could be an assuror if he/she had
an income greater than the threshold for the two previous fiscal years. Relative
sponsor systems need to be established in China. Additionally, compared with the
norm of a two-consecutive-year local living period in international migration law,
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China’s requirement of a five-consecutive-year local living period—usually
recognized as a requirement for applications for citizenship rather than permanent
residence status—is so demanding that it unnecessarily separates couples. Likewise,
there is virtually no strong evidence to support China’s minimum 5-year marriage
period requirement for partner migration applications, while it is widely accepted in
international migration law that applicants may apply for temporary or permanent
partner visa once their marital status is established.
In theory, China accepts asylum seekers for political reasons. An alien’s right to
seek asylum is recognized in accordance with Article 32 (2) of the Constitution 1982
(amended in 2004) (PRC), which prescribes that “the People’s Republic of China
may grant asylum to foreigners who request it for political reasons.” China is a
signatory to the Convention Relating to the Status of Refugees 1951 and the Protocol
Relating to the Status of Refugees 1967 in 1982. Since the Sino-Vietnamese war in
1979, 300,000 Southeast Asian refugees have resided in China (United Nation High
Commission Refugee 2007), and there were about 50,000 North Korean refugees in
China in 2006 according to statistics from the MFA (China Asian Political News
2006). However, there are no detailed conditions and procedures for application for
refugee status in China and no clarification of what might constitute these broad
terms. Thus, in practice, due to a lack of detailed rules for their implementation, the
regulations are not yet fully enforceable. It is necessary for Chinese migration
legislation to solve the sensible legal issues concerning asylum seekers in China,
although, taken together, these issues pose a major challenge, demanding creative
thinking and sound data to lay a solid cornerstone for their resolution.
Student Visa
Compared with China’s first group of 33 students from eastern European countries in
1950, the latest MOE figures show a record number of 195,000 foreign students studying
in China in 2007, up 20% from the previous year. However, China has not followed
student visa changes in international migration law, and study permission remains the sole
function of Chinese student visas. Foreign students are not allowed to seek employment,
conduct business, or engage in any profit-making activities during their term of study in
China. They are only allowed to participate in work–study programs as stipulated by their
university or college. Foreign tertiary educational graduates in China are not eligible for
working visas, and also do not enjoy priority when applying for skilled migration visas.
Migration Laws Techniques
The legal techniques involved in developing Chinese migration law lag significantly
behind international standards. Sponsor, assurer, and labor market test systems were
only established in 2004 in a quite simple form, lacking detail and operational
criteria. The immigration quotas and points system was adopted in 1997, only for
Mainland Chinese citizen applications for permanent residence in HK and Macao,
and was not followed by Mainland China’s migration system.
Migration intermediary agencies are unique to China: an increased rate of exit and entry
over the last three decades has triggered their emergence. In China, regulations introduced
in 1999, 2001, and 2002 paved the way for administration of migration intermediary
Changing Chinese Migration Law: From Restriction to Relaxation
agencies through the MPS, the Ministry of Labour and Social Security, the MOE, and
China National Tourism Administration. Their business concentrates on emigration
services, although a small percentage of agencies provide immigration services. Investors
are discouraged by the prospect of overly strict industry admission criteria, and excessive
licensing and certification demands limit the size of agencies and prevent them from
offering comprehensive services. Irregular examination and approval of applications
further creates a bureaucratic barrier to entry to this industry. In addition, a lack of suitable
supervision of migration agency operations seriously hinders the maintenance and
improvement of service quality and professionalism. A suitable regulatory framework for
supervision of the industry is urgently required. Until a solution is found, the combined
effects of these issues mean that the administration of migration intermediary agencies
cannot respond quickly and flexibly to reform.
Immigrant Integration and Nationality
Current Chinese migration law focuses on exit and entry administration. Although
immigrant integration attracted attention in the Permanent Residence Regulations
2004, it is not an important part of Chinese migration law. To alleviate the pressure
on the Chinese economy of mammoth growth in immigrant numbers, the Permanent
Residence Regulations 2004 prescribes that family migration applicants must have a
stable subsistence source and a dwelling place in China. However, the legislation is
silent on the subject of settlement services and welfare services.
Chinese Nationality Law was promulgated in 1980. It remains necessary to fill in
the gaps between Chinese nationality law and foreign nationality laws resulting from
the big changes of Chinese facts and the international situation. A suitable reform
methodology is needed to implement a pragmatic and flexible nationality policy
gradually, to protect Chinese national interests and citizenship rights. Considerable
attention needs to be paid to the loosening of the links between Chinese nationality and
citizenship rights to improve the integration of migrants and protect huaqiao’s rights.
Conclusions
The period from 1949 to 1978 marked the start of the PRC, through to the
introduction of significant reforms and the opening up of China in 1978. During the
period from 1949 to 1978, going abroad was subject to strict scrutiny in China. After
1978, the Chinese government began to reform the exit and entry administration and
started to relax restrictions on international migration. Special laws regarding exit
and entry were promulgated in 1985. Over 400 ministerial statutes paved the way for
comprehensive governance of exit and entry, mainly through the MPS. However,
most reform measures failed to integrate new policies into the special laws. Issues
fundamental to the system of migration control remain. China’s WTO accession
sparked a monumental overhaul of Chinese exit and entry administration law in
2001. The reforms were characterized by simplification of exit and entry procedures,
focusing on passports on demand. Yet, the country’s exit and entry administrative
procedures were not brought into line with international standards. The reforms were
superficial, so it is not surprising to find serious deficiencies in them. Yet, such
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deficiencies do not completely undermine the significance of the reforms, which will
exert subtle and lasting positive influences on China’s social and economic
development and global integration.
Although 2001 exit and entry administration reforms failed to fully achieve their
goals, the Permanent Residence Regulations 2004, Passport Law 2006, and Exit and
Entry Bill 2006 marked a new beginning for Chinese exit and entry administration
legislation—significantly improving Chinese permanent residence and passport
management and drawing authorities’, scholars’, and the public’s attentions to legal
issues in Chinese migration law. The post-2001 reforms are extremely significant steps
in the history of Chinese migration law, featuring accelerated relaxation of restrictions in
concomitant legislations. Despite the fact that China has far to go to establish and
advance its migration law, these legislative initiatives represent milestones in its
development. Against the backdrop of significantly improving legislation in China, the
trend towards perfect international migration legislation is irreversible.
The rich and complex developments in the history of Chinese migration law
constitute two sides of one coin for China today. China can either play a catalytic role in
helping to change it, or it can place a heavy burden on, and so hamper improvements in,
international migration. The Chinese government thus needs to clarify its position in
relation to migration with reference to international migration law ethics, rather than
exclusively in relation to Chinese national experience or tradition. Given the long years
of war and distorted relations with Western countries, it is understandable that there has
only been intermittent relaxation of limitations; restriction has been the dominant theme.
With international migration in China, the dominant theme of restriction will remain
until the legislation governing exit and entry is fully reformed. With respect to the
complexity underlying a history of accumulated migration issues in China, a welldesigned reform strategy made the experience of the development of international
migration law since 1949 as reference needs to be gradual.
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Guofu Liu is Professor of Law and Vice Dean of the Law School, Shantou University, China. He was
awarded a Ph.D. by the University of Technology, Sydney, in 2005; an LLM by China University of
Politics and Law in 1995; and an LLB by Zhengzhou University, China, in 1992. His recent research
focuses on migration law and he is the author of many monographs including The Right to Leave and
Return and Chinese Migration Law for Martinus Nijhoff Publishers. He can be reached at
[email protected].