Destination China: The Country Adjusts to its New Migration Reality

China’s place in the global migration order has been transformed by three decades of rapid economic development. Policies to reform and open the country initiated in 1978 accelerated Chinese emigration and internal migration towards the industrialized coast. While these flows remain important, another trend has gained momentum: Increasing numbers of foreigners are making their way to China.

Migration to China is exceptionally diverse. With a robust economy, welcoming universities, and low living costs, the country attracts people from all parts of the world. Relatively lenient visa policies have allowed entry to migrants from a range of backgrounds. The passage of new legislation in 2012, however, marked a step towards stricter immigration control.

Rising Entries Prompt Reform

For nearly three decades, migration to China was regulated by the 1985 Law of Administration of Entrance and Exit of Foreigners (Waiguoren Rujing Chujing Guanli Fa). Though largely known as a country of emigration, since the law’s enactment, there has been a 35-fold increase in the number of foreign entries (long- and short-term) into China, including rising numbers of tourists, students, and business travelers. There were approximately 594,000 immigrants living in China in 2010, according to the national census carried out that year, the first to record the number of resident immigrants. The top five countries of origin were the Republic of Korea (ROK), the United States, Japan, Burma, and Vietnam. Even as immigration is rising, immigrants represent a tiny fraction of the country’s population of 1.35 billion.

China’s economic benefits from immigration are indisputable. International traders help products from the export-oriented manufacturing sector reach their markets abroad. Tourists have become an important source of income. Foreign student fees contribute substantially to Chinese university budgets. And foreign-recruited skilled workers help push China further up the global value chain.

At the same time, the social consequences of immigration have become a public and political source of concern. In the 1990s, anxieties about “low-quality” immigrants not contributing to China’s modernization were mainly focused on large-scale irregular immigration from North Korea and Vietnam. With the economic crisis of 2008 hitting much of the globe, however, the accusation is now directed at migrants from around the world, including Europe and North America. More recently, protests and riots by African immigrants in China (an estimated population of 20,000 to 60,000), have also contributed to a fear of immigration as a threat to social stability. High-profile official campaigns to crack down on “illegal foreigners” have been launched in China’s major cities.

In 2004, the Ministry of Public Security (MPS) created a working group to overhaul the 1985 immigration law. The group was tasked with balancing the need to promote economic development and protect national security and social stability. The introduction of more comprehensive immigration legislation was considered part of general political reforms towards greater rule of law in a “socialist legal system with Chinese characteristics.”

The ensuing eight-year process involved several legislative bodies and stakeholders at the national and local level. Seminars were organized to discuss Western immigration laws and their transferability to the Chinese context. In June 2012, the Standing Committee of the National People’s Congress passed the new Exit and Entry Administration Law (Chujing Rujing Guanli Fa). The law came into force in July 2013. Its first article embodies the tension between managing the challenges and opportunities of immigration: “In order to regulate exit/entry administration, safeguard the sovereignty, security and social order of the People’s Republic of China, and promote foreign exchanges and opening to the outside world, this Law is hereby formulated.”

An underlying distinction in the new law between desirable and undesirable immigrants mirrors that found in the immigration policies of many Western countries. This distinction is seen in China as a tool for modernization. “The important thing for China is to set standards for foreigners in terms of educational attainment, occupation, salary and other aspects, just as developed countries do,” a legislator stated upon passing the law.

Combating the “Three Illegals”

The 2012 law is the first comprehensive legal framework for regulating foreigners’ visas, residence, and rights in China. The overall thrust is to combat illegal entry, residence, or work in China—the so-called “three illegals” (san fei).

The law raised the penalties for all immigration offenses. The fine for overstaying a visa, previously RMB 5,000 (USD $800), was doubled to RMB 10,000. The stipulated detention time for the same offense, to be served instead of paying the fine, increased from three to ten days to five to 15 days, and up to 60 days “if the case is complicated.” An order to leave China can be given along with the fine or detention.

The treatment of immigrants in practice, however, does not always conform to these stipulations. Both before and after the law’s passage, unauthorized migrants unable to pay for their own repatriation were detained for months and even years. In Guangdong province, a main destination for foreigners in China, the typical experience in 2014 for unauthorized African immigrants who could pay for their own repatriation was three months’ incarceration. Immigrants have interpreted the practice as an informal way to add to the punishment for overstaying.

The 2012 Exit-Entry Law also targets those assisting unauthorized migrants. A RMB 5,000 fine may be levied on individuals providing fake documentation or qualifications to ineligible foreigners. Employers of unauthorized migrants can be charged RMB 10,000, while the fine for those working illegally is RMB 20,000 (USD $3,200). Under Article 45, anyone who becomes aware of foreigners who have entered, reside, or are employed illegally in China should notify the local public security bureau. Some local governments have gone further in providing incentives to citizens for fighting the “three illegals.” In Guangdong, provincial provisions stipulate that informers can be rewarded.

Some of the tools used to control foreigners were initially designed to manage China’s own population, such as the household registration system (hukou). Foreigners must register their rented housing at the local police station within 24 hours of arrival. The local authorities thus have information about where foreigners live and when their visas expire. This is used to enforce immigration legislation. The 2012 law imposes a RMB 2,000 (USD $320) penalty on those who fail to register their rental housing. Housing can only be registered with the consent of the landlord, who may retract this approval if, for example, the tenant owes rent. The government deliberately manipulates the residential pattern of immigrants by declining to register housing for foreigners in certain areas.

The Chinese decision to task employers, landlords, and the general public with monitoring the immigration status of foreigners represents a de facto decentralization of immigration law enforcement. It resembles attempted initiatives taken elsewhere in the world—such as state-level legislation in Arizona, United States, ultimately struck down by the U.S. Supreme Court—to penalize people who shelter, employ, and assist unauthorized migrants.

Easing Restrictions

While the general trend is towards stricter monitoring and control, the 2012 law makes it easier for certain groups to enter and stay in China.

Welcoming Co-Ethnics Back: Overseas Chinese

Certain aspects of the new law were designed to strengthen ties with the 5.3 million China-born people and approximately 33 million ethnic Chinese living outside China, Hong Kong, and Macao. Many among this diaspora have skills needed by China as it upgrades its economy. The law granted Chinese citizens overseas without hukou extended rights to buy property and benefit from social, medical, and educational services.

Furthermore, two new visa categories (Q1 and Q2) were introduced for people with family ties to China, who no longer have to fit into other visa categories in order to enter and stay in China. Importantly, for transnational families, foreign spouses can now stay in China on a Q1 visa rather than a tourist visa, although it does not permit working in China.

In a Global Competition for Talent: Foreign Professionals

One of China’s long-term objectives is to attract more skilled foreigners without prior ties to China. The 2012 law introduced a new visa category to facilitate the immigration of high-level professionals and a fast-track mechanism to process them. However, there are no standardized procedures or qualification criteria, and the visa is currently issued on an ad hoc basis.

Employment visas are intended for professionals in sectors facing skills scarcity. It remains to be seen whether this requirement will be enforced more strictly in the future, given the high number of Chinese university graduates unable to find relevant jobs.

Honoring International Commitments: Refugees

Though China has signed the 1951 Refugee Convention and 1967 Protocol, the 1985 Exit-Entry Law did not mention the right to apply for asylum. A small but growing number of asylum seekers have found shelter in China, itself a country of origin for many international asylum applicants. The 2012 Exit-Entry Law includes provisions for persons to apply for refugee status and remain in the country during the screening of their applications.

The Chinese government is not yet capable of assessing asylum claims, and the Beijing office of the United Nations High Commissioner for Refugees (UNHCR) carries out refugee status determination on China’s behalf. The office has a growing caseload of intercontinental migrants seeking asylum, but its access to refugees from China’s neighboring countries is restricted. As of August 2014, the total population of concern in China, including refugees and asylum seekers, was 301,478, according to UNHCR estimates. Of those, 300,895 were from neighboring Indochinese countries, a long-standing refugee population. Somalia accounted for the second largest group, with 202 individuals.

No Way Out: Migrants Trapped in China

The new law has failed to introduce measures to manage one of China’s greatest immigration challenges: migrants trapped in the country because their visas have expired. Applications for exit visas must be supported by housing registrations, but registering housing requires valid travel documents. Consequently, migrants are often forced to buy forged documents in order to leave China, or must wait for the police to arrest, fine, and repatriate them. Both are costly ways to exit.

Among the unauthorized migrants in China are victims of trafficking. There is little knowledge about life in China in many African countries; traffickers have exploited this ignorance to entice women, especially East Africans, into going there. In China the women are exposed to debt bondage, forced prostitution, and deprivation of freedom. The Chinese government ratified the UN Trafficking in Persons Protocol in December 2009. However, the 2012 Exit-Entry Law does not contain provisions for trafficking victims or conform to international standards in this area.

Uneven Enforcement

The 2012 Exit-Entry Law was created with the aim of providing a more coherent framework for managing immigration, but immigration is still dealt with in greatly diverse ways across the country. This is partly because of the inconsistent and often vague nature of the law. Much is left to be specified through provincial regulations or ad hoc actions by law enforcement officers. Provinces may pass more restrictive provisions than those at the national level without facing constitutional disputes.

Government funding structures undermine uniform implementation of immigration legislation. Local governments fund the budgets for police departments in charge of day-to-day enforcement of immigration policy. With incomplete national and provincial regulations for reference, the police take orders from local authorities with their own political priorities.

The case of greater Guangzhou provides a strong example. While Guangzhou and the neighboring district, Foshan, work under the same national and provincial rules, their implementation of the immigration law has differed greatly. Unauthorized immigrants started moving from Guangzhou to Foshan ten years ago to escape strict controls on visa and housing registration in Guangzhou, as the Foshan police were known for being more forgiving with foreigners. African and Filipino migrants who had overstayed their visas also approached the police in Foshan rather than Guangzhou for exit visas. Eventually, the administrative and social burdens placed on Foshan by the influx of unauthorized migrants instigated stricter practices in the domains of visa checks, rental housing, and exit visas. By the end of 2014, many of the unauthorized had moved away from Foshan to districts where the laws were more leniently interpreted and enforced.

Future Implications for Migration and Immigrants in China

With less than two years since the new Exit and Entry Administration Law took effect, its full consequences cannot be assessed. Although resembling Western policies in some respects, the 2012 law is also distinctly Chinese in some of its content and modes of implementation. Most significantly, it leaves much to be decided at the local level, where politicians as well as law enforcement agents are prone to be influenced by public opinion. Currently, popular sentiments are hardening against immigration, suggesting that it may become increasingly difficult for many foreigners to enter and stay in China. Whether China can deter the migrants deemed unwanted while nurturing a welcoming environment for those viewed as desirable remains to be seen.

Sources

Bork-Hüffer, Tabea and Yuan Yuan-Ihle. 2014. The Management of Foreigners in China: Changes to the Migration Law and Regulations during the Late Hu-Wen and Early Xi-Li Eras and Their Potential Effects. International Journal of China Studies 5 (3): 571-97.

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