Citizens and Strangers

Part 3: Ye Zhusheng -- Illegal Immigrants in China: Legal Framework, Social Security Plan, and the "3-illegal" Aliens 

Interviewed by: Ye Zhusheng (Meridian 180)     Interviewed on: September 14, 2014

Dr. Ye Zhusheng is a senior journalist at the South Reviews, a well-known and pioneering news magazine in China. Dr. Ye reported and commented broadly on issues and events surrounding the rule of law in China and in other countries. Dr. Ye received his PhD in Law at the Chinese University of Hong Kong in 2014. His research is primarily on rule of law development in transitional states. His dissertation developed a new analytical framework for studying hybrid legal systems that can be neither categorized as rule of law nor rule by law. He has applied this framework in his study of the Chinese legal system during the reform era.   

Dr. Ye, thank you for giving us an opportunity to interview you. While it is commonly noted that Chinese people have migrated in significant waves into foreign countries in the past decades, foreign migration into China has also been a significant growing trend in recent years. Indeed, the social implications of increasing immigration has become a more salient issue in China in the wake of the Guangzhou Incident, when the death of a Nigerian man sparked a protest by Africans living in the city. Meanwhile, several new reports of migrants from North Korea, Vietnam, Laos and Burma have been making headlines in the Chinese media.

1. The Chinese word for migrant “Yi Min”(移民) not only covers foreign migration but also domestic migration trends. Could you please explain this concept in reference to foreign migrants specifically?

The residents originally from foreign countries are not called “Migrants” (Yimin) in the official documents in China. China calls any person who changes his or her household registration a “migrant.” For example, a great number of residents moved out of their counties and provinces in order to build the Three Gorges Dam. These domestic migrants whose household registrations were transferred from the reservoir areas to other locations are called “Three Gorges Migrants.” The word “foreigner” is used in official documents, sometimes with attributive words added in order to distinguish different types of foreigners entering into China.

With Henry Norman Bethune in mind, Chinese people generally tend to think that foreigners employed in China are helping to support Chinese development, especially during the early stages of the “Reforming and Opening Policy” when a great number of foreign management and technology personnel participated in the establishment and development of the “Three Kinds of Foreign-funded Enterprises,” at which time a great number of foreigners in academic and educational fields were employed by Chinese Universities. These foreigners are also termed “foreign experts” or “foreigners with high talent” in a favorable sense. Empirical research regarding foreigners lawfully employed in Beijing indicates that most occupy high positions by their employers. As far as I know, no Chinese laws restrict foreigners to employment within a particular level in the social employment hierarchy. There are no special requirements for certain qualifications or certificates required from foreigners.

The number of foreigners lawfully employed in China is increasing continuously. One research finds that the number was increasing by 17.8% per year from 2003 to 2008. It was also reported that this number rose from 60,000 in 2003 to 246,400 in 2013, a three-fold increase in 10 years. This data is relatively reliable. The foreigners lawfully employed in China need Employment Permit for Foreigners (EPF) issued by governments. The number of foreigners lawfully employed can be calculated correctly in accordance with the number of EPFs. It should be noted that the employment used here should be understood in a narrow sense, which excludes short-term investment and business activities. In other words, there would be a far greater number of foreigners “working” in China if the foreigners illegally employed (without an EPF) and the foreigners working as investors and businessmen were included.

The number of illegal employees can be estimated with reference to current statistics. In a survey focusing on Africans in Guangzhou with 648 people as samples, the ratio of illegal immigrants who have stayed has reached 40%. According to anther data released by the Ministry of Public Security, there were about 600,000 foreign residents excluding smugglers in China by the end of the year 2011. The smugglers are mainly from neighboring economically underdeveloped countries. It was reported that there were more than 200 illegal workers from Southeast Asia. Unlike the lawful employment groups, the above mentioned survey, which focused on Africans in Guangzhou, found that most of the illegal workers are less educated and unskilled and have to accept their position at the bottom of the pecking order.

Nevertheless, the number of “3-illegal aliens” (i.e., illegal entry, illegal staying, and illegal employment) is often exaggerated. It was reported by the Russian media that 200,000 illegal immigrants were deported by China in the single year of 2012. In reality, this number is likely overstated. For instance, only 20,000 cases of 3-illegal aliens were reported by the Exit and Entry Departments of Public Security in the whole country according to the Ministry of Public Security. Deportation cases are only one portion of those 20,000 cases.

2.China has been enacting regulation measures regarding foreign migrants. Could you please introduce the relevant context?

For foreigners in China, Chinese legal frames mainly include three aspects: 1) the protection of rights; 2) administrative measures; and 3) fighting against crimes. In terms of rights protection, article 32 of the Constitution of the People’s Republic of China provides that the People’s Republic of China protects the lawful rights and interests of foreigners within Chinese territory; foreigners on Chinese territory must abide by the laws of the People’s Republic of China. In addition, the Interim Measures for Participation in Social Insurances of Foreigners Employed in China, promulgated by the Ministry of Human Resources and Social Security in 2011, provides more detailed measures to protect the social security rights of foreigners employed in China. In terms of administrative measures which China put a great emphasis on recently, the Exit and Entry Administration Law of the People’s Republic of China enacted last year is the most important. It also stipulates that “the legitimate rights and interests of foreigners in China shall be protected by laws.” As far as the lawful interests enjoyed by the foreigners employed in China are concerned, Provisions on the Employment of Foreigners in China revised in 2011 provides more specific rules. In terms of the laws to fight against crimes and breaking-law activities, the Exit and Entry Administration Law of the People’s Republic of China stipulates special articles for all “3-illegal aliens,” while the clauses or articles with broader application and scope (for both Chinese people and foreigners) are listed in the Penal Code of the People’s Republic of China and the Law of the People’s Republic of China on Penalties for Administration of Public Security. Generally speaking, foreigners who commit crimes are punished in the same way as Chinese citizens, except foreigners may suffer additional punishment by way of deportation.

3.In some countries, immigrants are entitled to enjoy social security. To what extent do foreign immigrants in China have the right to enjoy social security measures that ordinary Chinese citizens enjoy including health insurance and a pension plan?

According to the policy launched and spread out recently, foreigners employed in China may participate in the social security plan. In 2011, 7% of foreigners employed in Beijing participated in a social security plan. In 2013, nearly 100% of foreigners lawfully employed participated in a social security plan on the national level. According to the data provided by the Ministry of Human Resources and Social Security, there were more than 200,000 foreigners employed in China who participated in the social security plan, which is proximate to the official announcement on the total number of foreigners lawfully employed in China. This indicates that our social security plan covers foreigners lawfully employed very well.

It can be said that social security issues concerning foreigners in China have been given more importance and are being improved gradually. However, there are still a large number of “3-illegal aliens” in China. Therefore, one important but easily overlooked issue is whether or not the interests of foreigners without employment permits could have adequate legal protection? As far as the social security plan is concerned, the answer is definitely no because such foreigners are not able to provide the relevant documents including employment permits. But there are some cases in which the courts have not denied legal protection for foreigners without employment permits because of “illegal employment” when there were disputes between the foreigners without employment permits and their employers.

In 2013, there was a case in Shanghai. A foreigner as plaintiff was employed by the defendant. Although the plaintiff had no employment permit, the court ruled in his favor with regards to salaries owed to him by the defendant. The basis of the decision was the general principles in civil law instead of the Labor Contract Law. The court considered the contract between the two parties an ordinary contract regarding an employment dispute which would therefore not require administrative approval in advance.

In addition, such foreigners illegally employed but protected by the flexible application of law usually have the lawful visas to legally stay in China despite lacking lawful employment permits. By contrast, as far as foreigners who are both illegally employed and illegally stationed in China are concerned, in order to continue to stay in China, they must not ask for judicial remedies when disputes regarding labor issues arise, in which case they would receive administrative punishments and be deported outside of China. Therefore, there are a great number of foreigners illegally employed whose rights regarding labor may not be protected by the law in practice.

4.Do you think the current legislation is adequate to address all of the above-mentioned issues, and perhaps even to prepare for future issues?

Although China is not a nation of immigrants, more and more foreigners come to reside in China, which is bound to influence the political, economic, social, and cultural fields. Unlike Guangzhou, most other cities have yet to experience a significant aggregation of “3-illegal aliens” in a small area. However, the increasing number of smugglers from East Asian countries and northern countries will lead to a further aggregation of “3-illegal aliens.” In spite of this, I still believe that this aggregation will not lead to too many very serious problems. As it is relatively isolated and separated, the policy makers might not prioritize it in their busy schedules. From this perspective, I think the current legislation will be able to deal with the current situation.

However, China’s economic development has reached a stage where both the amount and its interest in foreign direct investment is beginning to decline. On the one hand, the costs of labor are increasing; on the other hand, the supply of labor is declining. These double effects put China in a tough situation. Thus, it is important and necessary for policy makers to consider inducing a great number of migrant workers from neighboring countries and even African countries to meet China’s labor demands. The current legislation was designed in this context of abundant domestic labor supply in China. Thus I believe that the current Chinese legal system will not be adequate once labor shortage becomes a more significant issue in the future.

5.What do you think will be the most serious challenge to current legislation on immigration in the near future? Could you please provide several possible solutions?

To be frank, only a small portion of immigration issues can be solved by legislation—the economic issues confronted after the Reforming and Opening policy notwithstanding. The political, social and cultural issues on immigration can hardly be solved by legislation in the short term. In the long term, the most serious challenge will be to address the question of how to realize equal citizenship among citizens and foreigners, as most counties will also be confronting in the near future. It will be a constitutional issue of great significance. With regards to possible solutions, I would like to propose one point: it’s important to develop fundamental rights for Chinese citizens in order to gain further experience so as to advance citizenship for foreigners—as one Chinese phrase says: “to resist foreign aggression by first stabilizing the domestic situation.”