Migration – European Chinese Law Research Hub

Economic Development through Migration: Facilitating Skilled Migration to China through the Belt and Road Initiative

5. November 2020

A new paper by Eva Lena Richter

Contributing to the “China, Law and Development” research project, Eva Lena Richter‘s latest research observes Chinese and multilateral efforts to facilitate skilled migration from Belt and Road Initiative countries to China. Since the launch of the Initiative, strengthening people-to-people ties is part of its cooperation priorities. This cooperation is established in different ways, including student and academic exchanges, research cooperation, joint vocational training, and tourism. The Chinese government is the major guiding force of the Initiative and hence also shapes how these exchanges, or rather forms of migration, develop between China and Belt and Road Initiative-countries.

This paper (a free draft version here) looks at student, academic, and personnel mobility from Belt and Road Initiative countries to China and forms of migration and national Chinese legislation as well as efforts in bilateral and multilateral cooperation to facilitate them. Is the promise of mutually beneficial development tangible in these efforts? What role does China occupy in shaping the way migration develops along the Belt and Road Initiative? What role does Chinese skilled immigration legislation play? These are some of the questions this paper addresses.

The findings suggest that new skilled Chinese migration legislation, geared towards foreigners with tertiary education, paired with Belt and Road Initiative cooperation efforts and visa facilitation, is opening comparatively more opportunities for skilled nationals of BRI countries. BRI nationals are more often exempt from visas and have access to targeted talent attraction and retention programs. Nevertheless, up to now, these efforts have been mainly undertaken by the Chinese government, and skilled Belt and Road Initiative nationals are not being encouraged to migrate to China under bilateral employment agreements. For now, the bulk of China’s skilled immigrants does not come from Belt and Road Initiative countries.

Eva Lena Richter is a PhD Candidate at Cologne University’s Chair for Chinese Legal Culture and a Research Associate with the “China, Law and Development”-project, University of Oxford. She focusses on China’s legal system for skilled labour migration and efforts to attract and retain skilled foreigners in China. Get in touch with her on Linkedin.

Entry bans, Exit bans

8. August 2020

Two new papers by Jasper Habicht

States reserve the right, derived from their sovereignty, to determine who can and cannot enter the country. While the entry of citizens to their home country is today enshrined in international law as inalienable human right, foreign nationals typically do not possess the right to enter a country. With the recent spread of the novel coronavirus SARS-CoV-2, this fact is once again clearly demonstrated: EU citizens who had become accustomed to free movement and open borders within the Schengen area are suddenly confronted with quarantine measures and travel restrictions.

In order to curb the spread of the novel coronavirus SARS-CoV-2, the People’s Republic of China has imposed an entry ban as of 28 March 2020, which severely affects the entry of foreigners to the country. Visas and residence permits valid at the time of the entry ban’s entry into force cannot be used to enter China until further notice, and new visas will only be issued for certain necessary activities. Such an entry ban announced at short notice is a considerable encroachment on personal freedom and poses unexpected challenges for individuals, especially in the context of employment. How should one act as a foreign employee in this case? What are the possibilities of circumventing or even challenging the entry ban? What possibilities do employers have in cases where a foreign employee is unable to appear at work due to the entry ban?

Immigration at Pudong Airport in Shanghai featuring a “Belt and Road” Lane

The essay “The current ban on entry into the People’s Republic of China due to the COVID-19 epidemic and resulting problems in the context of employment” (Zeitschrift für Chinesisches Recht 27(1), 18-27; preliminary version available on SSRN) by Jasper Habicht places the entry ban in its legal context and attempts to provide a rough first assessment. It concludes that foreign nationals have no access to legal remedies against restrictions of their entry to China, before they entered the country. It also assumes that individual solutions based on mutual agreements are probably the best choice to solve labour disputes in the context of the current situation.

However, the People’s Republic of China not only restricts the entry of foreign nationals in certain circumstances, but also their exit. Exit restrictions of foreign nationals are also known in other countries in the context of criminal investigation or the persecution of administrative or criminal offences. However, in the case of China, exit restrictions may also be a result of civil litigation.

In recent years, literature has pointed to the problem of exit restrictions that may be imposed upon defaulting debtors in China. The Civil Procedure Law allows courts to impose exit restriction as a measure to enforce judicial decisions, but the Exit-Entry Administration Law extends this regulation to pending civil cases. The practice of courts to apply exit restriction as a form of injunction exhibits a number of problems: the legal basis is vague, the scope of application to legal persons is unclear and courts often conduct only a formal examination of applications. As their aim is not to directly safeguard assets in dispute, it is debatable whether exit restrictions should be classified as preservative measures as applied by courts. When a legal entity is a defendant in a civil case, exit restriction can be applied to almost any of its managerial staff.

Habicht’s article “Exit restrictions in the context of Chinese civil litigation” (Asia Pacific Law Review 27(1), 83–101) concludes that exit restrictions are a considerable impingement on personal freedom and should therefore only applied where no other, less stringent measure is available. In practice, however, they are imposed by Chinese courts in a quick and severe manner and legal remedies are opaque. As a result, a high degree of legal uncertainty evolves, which may well discourage foreign individuals and enterprises from investing in China.

China’s “Campaigns + Law” Formula

25. June 2020

A new book by Jasper Habicht

In the People’s Republic, campaigns are an established means for achieving political and legal aims. Since the beginning of the economic reforms, the country has developed rapidly economically, giving rise to both the constant development of the legal system and China’s attractiveness for workers from abroad. In response, two somewhat divergent strategies for handling immigration surged side by side, namely, campaigns and legislation.

In 2004, a fundamental revision of Chinese immigration law began. The old law could no longer meet the requirements resulting from the economic development that not only pushed the production of a detailed framework of administrative law, but also transformed China into a country of immigration. At the same time, reports about campaigns against illegal immigration and illegal employment of foreigners emerged in the media. In the context of these campaigns that targeted illegal entry, illegal stay and illegal employment of foreign nationals (so-called “sanfei” 三非 campaigns), the public was invited to report any suspicious activities related to illegal immigration to the police. Shortly before the revised law was promulgated, a large campaign against illegal immigration was deployed in Beijing.

The revision of immigration law and the deployment of campaigns against illegal immigration obviously took place during the same period, which suggests a relation between both. This raises the question: Why was it necessary to deploy campaigns when the law was already being revised? Apparently, the revision of the law would not suffice to strengthen control over immigration issues.

Jasper Habicht investigated the topic in detail in the course of his PhD project and found: law and campaigns are interrelated and dependent on one another.

His analysis of the internal structure of the campaigns and the embedding of the current immigration law in the context of Chinese administrative law showed that one the one hand, it was necessary to revise the law. On the other hand, its thorough implementation at the local level required the compliance of local police authorities. Because China is a centralistic state, control of the central level over local officials is often limited, especially in the police sector. Campaigns are an established means not only to communicate to the public that the central government has succeeded in strengthening control over a certain issue, but also to exert pressure on local police officials to comply with central-level norms.

The above-mentioned whistle-blower scheme, in the course of which the public reports illegal activities to the police, urges local police to act, resulting in higher compliance. The campaigns therefore not only tackle the issue of illegal immigration directly, but also by attacking regulatory failure or non-compliance of local police officials. On the other hand, the Chinese government understands that campaigns need to be legitimised by legal norms. Purely political campaigns would be harmful to the emerging economy.

In summary, it is precisely the combination of law and campaigns that is an effective means of governance in the context of immigration law.

Find Habicht’s careful examination of the role of campaigns in the context of China’s immigration law in his book “The Role of Campaigns in Law Enforcement: The Example of Sanfei Campaigns in Chinese Immigration Law” (e-book) recently published with Nomos. The print version can be purchased here.

China – An Immigration Country?

17. April 2020

Recent Covid19-related restrictions on entering the People’s Republic aside, foreign immigration in China has been on the rise and is becoming more diverse. Besides high-skilled foreigners from developed countries, the number of foreign students, many from lesser developed countries low-skilled laborers and marriage migration increases. Pieke, Ahl, Barabantseva, Pelican, Speelman, Wang and Xiang have analysed how the increasingly diverse foreign immigration is shaping Chinese society.

Along with the rising numbers, the legal framework has undergone fundamental reformation. In a forthcoming chapter now available on SSRN, Björn Ahl and Pilar-Paz Czoske have observed on the one hand that streamlined application procedures that are available online and clarified competences have increased efficiency whereas the classification scheme of different categories of foreign nationals has enhanced transparency. On the other hand, recent reforms have been more symbolic than functional and the protection of rights of migrants has not been significantly improved by recent reforms. With regard to international law, China has not ratified the Convention on the Protection of the Rights of Migrant Workers and does not model the protection of labour rights of foreign nationals on the equal treatment principle as it is embodied in the Convention. However, China voted for the Global Compact for Migration after being actively involved in its drafting process and further committing itself in this context to improve national migration legislation.

The chapter on the Reform of Chinese Migration Law and the Protection of Migrants’ Rights for ‘East Asian Migration Governance in Comparative Perspective: Norm Diffusion, Politics of Identity, Citizenship’ is available here.

European Chinese Law Research Hub

Tag: Migration

A new paper by Eva Lena Richter

Two new papers by Jasper Habicht

A new book by Jasper Habicht