By Stuart Wiggin
Review sessions held by China's highest legislature, the Standing Committee of the National People's Congress (NPC); rarely create much excitement among expatriate circles. Yet, the NPC's most recent session will have attracted much more attention than usual following the third reading of a draft law on the entry and exit management procedures. As reported by most Chinese media outlets, the draft law directly affects the minimum amount of time foreigners can stay in China when coming here to work. If passed into law, those who come to China to work on short-term projects will be directly affected; however, it is unclear as to whether this law will truly address the problem of illegal employment and illegal presence in China or whether this is the main issue which expatriates should be concerned about.
The first major overhaul of China's immigration law since 1985 has been in the discussion stage since the end of 2011, when a new draft law on entry and exit administration was first introduced in the NPC for initial review. In this sense, the review of the law should not be seen as a knee jerk reaction to the recent occurrence of several isolated incidents concerning the behavior of foreign visitors, which managed to whip up xenophobic sentiment on social media sites across China leading to a 100 day crackdown targeting foreigners illegally residing in the country. Due to increased economic immigration, a trend which has rapidly developed in line with China's economic growth, there is a need to review the nation's immigration laws; which many regard as being outdated. At the same time, many will feel that this draft law provides the government with a chance to crack down upon illegal presence in China.
In essence, the draft proposal to shorten the minimum stay of foreigners makes perfect sense and will be of little concern to many. Zhang Bailin, vice-chairman of the NPC Law Committee, said that the change was encouraged because "some foreigners who come to China for temporary work stay less than half a year." For those foreign workers employed on a long-term, yearly basis, the change in the law is purely academic as they will be granted residence permits for the duration of their contract. The change is therefore a simple administrative stroke designed to prevent people staying in China on a residential work permit after their term of employment has ended.
As many foreign expatriates are aware, there is a grey area within China's immigration law which allows visitors to stay in China for prolonged periods of time on business visas, categorized as F visas. The current law is clear that those people on business and student visas cannot be legally employed during their stay; though the mechanism for enforcing this law is apparently lacking. At present, the Ministry of Foreign Affairs is responsible for issuing visas. A foreigner's information is then archived in different ministry's files according to the purpose of a person's visit. As a result, the current system is spread out across a number of agencies, making enforcement of visa regulations a difficult, if not impossible task.
According to Xinhua, the draft law was reviewed with the aim of curbing the illegal entry, stay and employment of foreigners and stipulating harsher punishments for people who enter or exit the country illegally. Meanwhile, government statistics reveal that the number of people entering and exiting China has increased at a rate of 10 percent annually since 1990. The real elements of the draft law, therefore, which will serve to prevent illegal presence, are those which focus upon institutions or companies that issue fake certificates or invitation letters to unqualified foreigners. Increased fines of 5000 yuan alongside a clause which requires companies to cover the cost of an illegal employee's deportation may deter employers from pursuing foreign staff at any cost. Suggestions of raising the amount of fines that foreigners face when staying illegally would also serve as a major deterrent, as the current maximum fine of RMB 1000 is a relatively low price to pay for breaking the law.
The initial draft of the law, tabled in December 2011, was released to the public at the start of this year in an effort to seek comments and suggestions. However, the most recent draft has not been made publicly available. Press reports in April suggested that the draft covered issues relating to international talent visas; the definition of illicit entry, stay and employment in clear terms; and the creation of a centralized records system as opposed to the current records system which is spread across a host of government agencies. Seeking public opinion, especially from the expatriate community would certainly benefit the efficacy of any future law; however, there has been no sign from the NPC that opinion will be sought at this stage of the proceedings and it is unlikely that expatriates will have the chance to add their opinion to the mix.
One of the most pressing issues included within the first draft, which was omitted from most recent media reports in reference to the latest review, and was mentioned only in passing by the China Daily, was that, if passed, the law could provide the Ministry of Public Security and the Ministry of Foreign Affairs with the authority to collect biometric data from people entering and exiting the country. According to statements made by Vice Minister of Public Security, Yang Huanning in April, collecting biometric data will improve the efficiency of border control and boost the security of the country. Should such a policy be pursued, as it has been done in numerous other countries around the world, the process of recording such data should be made as smooth as possible so as not to add to the already lengthy procedure required when foreigners seek legal residence status in China, which already requires health checks and numerous police station visits.
Laura Danielson, an Immigration Lawyer and chair of the Immigration Department at Fredrikson and Byron, told CRI that one of the issues with the Chinese immigration law is that it doesn't have many categories for work permits. Danielson added that because people with work permits have to be sponsored by an employer that is registered, this creates problems for new companies coming over to China and people hoping to carry out freelance work. In contrast, Danielson noted that both the U.S. and the U.K. have a greater number of visa categories which make sense, enabling people who are starting a new business or have extraordinary talents, to enter the respective countries. As for the shortening of the minimum stay for residential work permits, Danielson stated that, "One impact it might have of course is that more people are likely to apply for work permits. And multinational companies sending employees to China on temporary business trips will need to either limit their stays or apply for work permits." The new law, if passed, "probably won't discourage people eligible for work permits but may discourage freelance or entrepreneurial people" from embarking on a move to China.
Vice Minister Yang previously stated that the new law will address the current problems caused by an increased level of economic immigration while continuing to encourage foreign talent to move to China. Yang previously stated, "We will increase the eligibility quota for permanent residence permits and consider extending the applicable scope for duty-free entry and multiple-entry visas in order to make China more competitive in soliciting foreign investment and talented people."