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Summary

China does not appear to have a program specifically providing the children of foreigners who illegally enter, stay, or work in China a pathway to citizenship or legal residence.  Under the nationality law, a child born in China is a Chinese citizen only if at least one of his or her parents is a Chinese citizen, or if his or her parents are settled in China and the parents are stateless or their nationalities cannot be determined.  Naturalization is possible under the law, but in practice naturalization may be rare other than through marriage or a great contribution to the country.  Unmarried children of Chinese citizens and permanent residents may apply for permanent residency in China; such children must be under the age of eighteen.

Foreigners illegally entering, staying, or working in China may be deported.  Those who illegally enter, stay, or work in China may also be fined.  Guardians or other persons responsible for guardianship may be fined if they fail to perform the obligations of a guardian and cause a foreign child under the age of sixteen to reside in China illegally.    

Chinese law on refugees and asylum is still being developed.  Effective July 1, 2013, the new Exit and Entry Law allows refugees and asylum seekers to obtain ID cards, a step deemed to lay a foundation for future enhancement of refugees’ rights to work and obtain an education in China.  In November 2013, it was reported that refugee children were allowed to attend public schools at the primary level as local children in five Chinese provinces.

I.  Introduction

The People’s Republic of China (PRC or China) is not a country that has traditionally attracted large numbers of immigrants.  Although the rapid economic growth over the past three decades has brought in more foreigners than ever before, there is still no comprehensive immigration and nationality statute in place. 

The primary law governing the acquisition and loss of Chinese citizenship is the PRC Nationality law adopted in 1980, which contains only seventeen general articles and has not been updated since its adoption.[1]  Other than the Nationality Law, immigration issues are mainly governed by the PRC Law on the Administration of Exit and Entry (Exit and Entry Law), which entered into effect in 2013.[2]  Immigration provisions are also found in regulations; in particular, the rules on permanent residency were first officially introduced into Chinese law in 2004, when the Ministry of Public Security and the Ministry of Foreign Affairs jointly issued the Measures for the Administration of the Examination and Approval of Foreigners’ Permanent Residence in China (Permanent Residence Measures).[3]

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II.  Citizenship and Permanent Residency

A.  Citizenship 

China does not appear to have a program specifically providing the children of foreigners who illegally enter, stay, or work in China a pathway to citizenship or legal residence.  The nationality law basically follows the principle of jus sanguinis, under which a child born in China is a Chinese citizen only if at least one of his or her parents is a Chinese citizen, or if his or her parents are settled in China and the parents are stateless or their nationalities cannot be determined.[4]

Naturalization is possible under the Nationality Law, although the provisions are general and vague, and in practice naturalization may be rare other than through marriage or a great contribution to the country.[5]  According to the Nationality Law, a foreign national or stateless person who is willing to abide by China’s Constitution and laws and who is a close relative of Chinese nationals, has settled in China, or has “other legitimate reasons” to apply for naturalization, may be naturalized as a Chinese citizen upon approval of his application.[6] 

B.  Permanent Residency

Under the Permanent Residence Measures, unmarried children of Chinese citizens and permanent residents may apply for permanent residency in China; such children must be under the age of eighteen.[7]  The Measures specify that the following foreigners and their spouses and children are eligible to apply for permanent residency in China:

  • Investors who have made direct investments in China with stable operations and good tax payment records for three successive years;
  • Corporate executives, professors, and researchers who have held a post in China for at least four consecutive years, have been physically present in China for a minimum period of three cumulative years within the four years, and have good tax payment records; and
  • Foreigners who have made great and outstanding contributions to China, and those who are especially needed by the country.[8]

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III.  Illegal Immigrants

The Exit and Entry Law places restrictions on foreigners who illegally enter, stay, or work in China.  Such foreigners are rhetorically described as the “three illegals” foreigners (san fei wai guo ren) by the government.[9]

According to the Exit and Entry Law, foreigners illegally entering, staying, or working in China may be deported.[10]  Those who have been ordered deported but cannot be deported immediately will be detained.[11]  The Exit and Entry Law further specifies fines that may be imposed respectively on those who illegally enter, stay, or work in China.[12]  Guardians or other persons responsible for guardianship may be subject to a fine of up to RMB1,000 (about US$150) if they fail to perform the obligation of a guardian and cause a foreign child under the age of sixteen to reside in China illegally.[13]

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IV.  Chinese Law on Refugees

China acceded to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol in September 1982.[14]  Despite its early accession to these treaties, the domestic law on refugees and asylum is still being developed.  Currently, the only legal provisions relevant to refugees are one article in the Constitution providing the general principle on asylum, and one article in the Exit and Entry Law that gives legal status to refugees and asylum seekers.  A comprehensive refugee law that would cover a wider range of refugee issues is under consideration.[15]

Article 32 of the Constitution declares that China “may grant asylum to foreigners who request it for political reasons.”[16]  Effective July 1, 2013, the Exit and Entry Law contains a provision that, for the first time, allows refugees and asylum seekers to obtain ID cards in China.  According to article 46 of the Exit and Entry Law, foreigners who apply for refugee status in China may, during the screening process, stay in China with temporary identity certificates issued by public security organs.  Foreigners who are recognized as refugees may stay or reside in China with the refugee identity certificates issued by public security organs.[17]

Other than the above Constitution and the Exit and Entry Law provisions, there are no legal provisions specifically regulating the admission of refugees and handling of refugee claims under Chinese law.  The refugee status determination is generally conducted by the United Nations High Commissioner for Refugees (UNHCR) Beijing Office and Chinese authorities have not substantially engaged themselves in the UNHCR process.  Refugees are recognized under the UNHCR’s mandate.[18]  Nor is there an explicit, competent authority in charge of refugee affairs.  The Ministry of Public Security should be responsible for matters relevant to refugee status recognition and repatriation of refugees, and the Ministry of Civil Affairs should attend to refugee resettlement, but no law explicitly authorizes them as the competent authorities.[19]

Refugees in China were generally treated as aliens who had no right to employment.[20]  They were supported by the UNHCR in terms of food, accommodation, health care, and children’s education.[21]  Article 46 is deemed a positive first step in providing a legal ground for refugees to live in China.  Recognizing that refugees and asylum seekers are entitled to ID cards, the law “lays a foundation for future enhancement of refugees’ rights in China, such as the right to work and the right to education.”[22]  In November 2013, the UNHCR reported that refugee children in five Chinese provinces were allowed to attend public schools at the primary level under the same conditions as local children.[23]  

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Prepared by Laney Zhang
Foreign Law Specialist
September 2017


[1] Zhonghua Renmin Gongheguo Guoji Fa [PRC Nationality Law] (adopted by the National People’s Congress (NPC) on Sept. 10, 1980, and effective the same day), The Laws of the People’s Republic of China (1979–1981) [Laws of China 1979–81] 182–83, English translation available on the NPC website, at http://www.npc.gov. cn/englishnpc/Law/2007-12/13/content_1384056.htm, archived at https://perma.cc/T7MW-R7Z5.

[2] Zhonghua Renmin Gongheguo Chujing Rujing Guanli Fa [PRC Law on the Administration of Exit and Entry] (adopted by the NPC Standing Committee on June 30, 2012, effective July 1, 2013), available on the State Council website, at http://www.gov.cn/flfg/2012-06/30/content_2174944.htm, archived at https://perma.cc/XU29-HJKF.

[3] Waiguoren Zai Zhongguo Yongjiu Juliu Shenpi Guanli Banfa [Measures for the Administration of the Examination and Approval of Foreigners’ Permanent Residence in China] (Permanent Residence Measures) (Order No. 74 of the Ministry of Public Security and Ministry of Foreign Affairs, Aug. 25, 2004), http://www.gov.cn/ gongbao/content/2005/content_64214.htm, archived at https://perma.cc/AF2P-XZCD

[4] Id. arts. 4 & 6.

[5] In recent years, many foreigners have obtained Chinese nationality in Hong Kong, where the Special Administrative Region (SAR) government has been accepting naturalization applications systematically since the establishment of the Hong Kong SAR in 1997.  Press Release,News.gov.hk, LCQ2: Applications for Naturalisation as Chinese Nationals (Dec. 12, 2012), http://www.info.gov.hk/gia/general/201212/12/P201212120342.htm, archived at https://perma.cc/78GC-9B76.

[6] PRC Nationality Law art. 7.

[7] Permanent Residence Measures art. 6.

[8] Id.

[9] Faxian “San Fei” Waiguo Ren Ying Jishi Baogao Gong’an Jiguan [Reporting “Three Illegals” Foreigners to the Public Security Organs], NPC (July 2, 2012), http://www.npc.gov.cn/npc/xinwen/lfgz/lfdt/2012-07/02/content_ 1728557.htm, archived at https://perma.cc/5LZ2-B2QU.

[10] Exit and Entry Law art. 62.

[11] Id. art. 63.

[12] Id. arts. 71, 78, & 80.

[13] Id. art. 78.

[14] UNHCR Regional Representation in China, UNHCR (Mar. 10, 1999), http://www.unhcr.org/hk/en/134-china-2.html, archived at https://perma.cc/C573-RSBZ.

[15] Liu Guofu, Zhongguo Nanmin Fa [Chinese Refugee Law] 214–16 (2015).

[16] Xianfa [Constitution] art. 32, § 2 (1982), 2004 Fagui Huibian 4–28.

[17] Exit and Entry Law art. 46. 

[18] UNHCR Regional Representation in China, supra note 14; Cong Guojifa Yiwu Tan Woguo de Nanmin Zhenbie Jizhi [On Building Our Refugee Determination System from Perspective of International Law Obligations], Xinhuanet (May 13, 2015), http://news.xinhuanet.com/legal/2015-05/13/c_127793981.htm, archived at https://perma.cc/A9FR-C4DK.

[19] ZhaoΥinan, Legal Status for Seekers of Asylum, China Daily (July 2, 2012), http://usa.chinadaily.com.cn/china/ 2012-07/02/content_15540683.htm, archived at https://perma.cc/FH74-HUJM.

[20] Other than those Indochinese refugees China accepted in 1970s and still hosts, who were provided refugee status and settled in southern China.  UNHCR Regional Representation in China, supra note 14.

[21] Id.

[22] Lili Song, Refugee Protection in China: Recent Legal and Policy Developments, Rights in Exile (Sept. 1, 2014), http://rightsinexile.tumblr.com/post/96365498957/refugee-protection-in-china-recent-legal-and, archived at https://perma.cc/9LEE-JJ98.

[23] Chinese Schools Offer Primary Education for Urban Refugees, UNHCR (Nov. 22, 2013), http://www.unhcr. org/528f66086.html, archived at https://perma.cc/8SSB-AS67.