The right to leave and return and Chinese migration law / Geoffrey Liu.

Format:

Book

Author/Creator:

Liu, Geoffrey.

Contributor:

Joint International Law Program.

Language:

English

Subjects (All):

Emigration and immigration law--China.

Emigration and immigration law.

Freedom of movement--China.

Freedom of movement.

Freedom of movement (International law).

China.

Physical Description:

xx, 428 pages ; 25 cm

Place of Publication:

Leiden ; Boston : Martinus Nijhoff, [2007]

Summary:

Although the Right to Leave and Return (RLR) is a fundamental human right, each State has the sovereign right to regulate RLR in accordance with its own laws. In the ease of China, the country's communist political system has significantly affected the development of RLR and the country's approach to it. As a rule, China's approach is restrictive. As part of its reform and 'opening up' policies, China has embarked on a range of reforms to liberalise RLR, but the reforms lack cohesion and focus, and remain restrictive. Given its past and its complex social and economic conditions, China may have some justifications for its approach, but on balance, has more to gain from adopting a more liberal approach. The issue of RLR in China is crucial both for the future of China, and for development of RLR in the world.

The Right to Leave and Return (RLR) and Chinese Migration Law provides a comprehensive and systematic review of the RLR in international and Chinese migration law. It has been written on the basis of Chinese statutes pertinent to the RLR, also of relevant international instruments and key cases. It investigates RLR in international migration law and practice; analyses RLR in the context of China, and identifies its driving factors; investigates the conditions and practical concerns relevant to the protection of RLR; and concludes with recommendations on how the Chinese regulatory regime governing RLR ban be improved.

Contents:

1.1 Research objectives and significance 1

1.2 Research context 4

1.3 Research scope, methodology and sources 6

Chapter 2 Foundations of the Right to Leave and Return (RLR) 11

2.1 Philosophical foundations 12

2.1.1 The definition of RLR 12

2.1.2 The nature of the migration 14

2.1.3 RLR is a natural right rooted in natural law 15

2.1.4 RLR translation from natural right to positive right 19

2.1.5 Consequences of violating RLR 21

2.1.6 Justification of the limits on RLR 22

2.2 Historical foundations 22

2.2.1 The basis of the laws governing RLR 23

2.2.2 The historical development of the laws governing RLR 24

2.2.3 The factors driving the historical development of the laws governing RLR 32

2.3 Globalisation and international migration 35

2.3.1 Globalisation 35

2.3.2 International migration 37

2.3.3 International migration policy 39

Chapter 3 RLR in International Migration Law 45

3.1 General considerations on RLR 46

3.1.1 The recognition of RLR 46

3.1.2 Standard of RLR 47

3.1.3 Sources of evolving jurisprudence of RLR 49

3.2 State acceptance of RLR 52

3.2.1 The right to obtain the necessary travel documents, particularly a passport 52

3.2.2 Passport administration 53

3.2.3 The effect on RLR of not having a passport 54

3.2.4 The right to access foreign exchange 55

3.3 Permissible limits on RLR 56

3.3.1 General permissible limits 56

3.3.2 State practice 58

3.3.3 Interpretation of permissible limits 59

3.3.4 The meaning of the terms used in the limit clauses 60

3.3.5 The principle of proportionality 69

3.4 The right to leave the country 70

3.4.1 Who may exercise the right to leave 71

3.4.2 Recognized grounds for limiting the right to leave 72

3.4.3 Bureaucratic barriers 74

3.4.4 Loss of technical expertise from the State through emigration: the 'brain drain' 75

3.4.5 The right to enter another State 80

3.4.6 Procedural right against expulsion 80

3.5 The right to return to one's own country 84

3.5.1 The general considerations of the right to return to one's country 84

3.5.2 'One's own country 85

3.5.3 'Arbitrarily' 89

3.5.4 The duty not to expel nationals and to accept expelled nationals 91

Chapter 4 Driving Factors of RLR in China 95

4.1 Politics 95

4.1.1 The system of the multi-party cooperation and political consultation led by the Communist Party of China 96

4.1.2 China as a member of the former communist bloc 99

4.2 Economics 101

4.2.1 Basic economic factors 101

4.2.2 Socialist public ownership of the means of production and a transitional economy 103

4.2.3 Interaction between economic development and laws governing exit and entry 105

4.2.4 Impacts of the limits of the movement within the territory on RLR 106

4.3 Culture 108

4.3.1 The community orientated culture 108

4.3.2 Loyalty (Zhong) and filial piety (Xiao) 109

4.3.3 The duty orientated culture 111

4.3.4 Sublating (Yangqi) 113

4.3.5 Agrarian civilisation and geographical isolation 114

4.4 Law 115

4.4.1 Absence of the Constitutional foundation to protect RLR 115

4.4.2 The nature of law governing exit and entry as the 'ruling tool' (Tongzhi Gongju) to control the exit and entry 116

4.4.3 The aim of law governing exit and entry: to control the exit and entry 118

4.4.4 The conflict of laws regarding the exit and entry 119

4.4.5 Legal research on RLR in China 125

Chapter 5 Historical Development of Chinese Regulatory Framework Governing RLR 129

5.1 The Qing dynasty: from complete prohibition to practical relaxation 130

5.2 1912 to 1949: limits and encouragement 132

5.3 The People's Republic of China (1949 to 2001): from the prohibition policy to relaxation policy 134

5.3.1 1949 to 1978: the return of prohibition policy of the Qing dynasty 134

5.3.2 1979 to 1985: the start of the reform of the restrictive framework governing RLR 139

5.3.3 1985 to 2001: the development of the reform of the restrictive framework governing RLR 143

5.4 The context and content of the reforms 149

5.4.1 Content of the reforms 149

5.4.2 Reform goals 150

5.4.3 Reform measures 151

5.5 Effects, deficiencies and nature of the reforms 155

5.5.1 Effects of the reforms 155

5.5.2 Deficiencies in the reforms 158

5.5.3 The nature of the reforms 160

Chapter 6 The Right to be Granted a Passport in China 165

6.1 General considerations of the passport 165

6.1.1 Categories of the passport 165

6.1.2 Scope of various kinds of passports 166

6.1.3 Passport issuing authorities 168

6.1.4 Passport legislations 168

6.2 Ordinary passport for public affairs 169

6.2.1 Scope of public affairs passport 169

6.2.2 Application procedures and examination criteria 173

6.2.3 Management of public affairs passport 174

6.2.4 Causes of the issues related to public affairs passport 175

6.3 Ordinary passport for private affairs 176

6.3.1 Prohibition of the application lodged in non-registered resident area 177

6.3.2 Overly elaborate formalities for residents in small cities and rural areas 178

6.3.3 Retention of passports by designed departments 179

6.3.4 Revocation of a passport or declaring passport invalid 180

Chapter 7 The Right to Leave of Chinese Citizens 185

7.1 General limits on the right to leave of Chinese citizens 185

7.1.1 Contents of general limits on the right to leave of Chinese citizens 185

7.1.2 Appropriateness of the limits 187

7.1.3 Legal validity of relevant interpretative provisions 187

7.2 Special limits on the right to leave of Chinese citizens 188

7.2.1 Overseas employment: skilled emigration 188

7.2.2 Overseas pilgrimage 189

7.2.3 Overseas religious study 190

7.2.4 Limits on the right to leave based on the applicants' special status 191

7.3 Prerequisite certificates from the department in which the applicants are employed (Gongzuo Danwei Yijian Qianzhi) 193

7.3.1 Scope of the prerequisite comments 194

7.3.2 Questions on the prerequisite comments 196

7.4 Household deregistration prior to leaving China 197

7.5 The right to access foreign exchange in China 198

7.5.1 Limits on the right to purchase foreign exchange 198

7.5.2 Limits on the right to remit outward foreign exchange 200

7.5.3 Limits on the right to carry outward foreign currencies 201

7.5.4 Legislations governing foreign exchange 202

7.6 The administration of individuals prohibited from leaving China / Xianzhi Chujing Zhidu 203

Chapter 8 The Right to Return to China 207

8.1 Limits on the right to return of Chinese citizens, especially dissidents 208

8.1.1 The situation of limiting Chinese citizens, especially dissidents to return 209

8.1.2 Practices of limiting Chinese citizens, especially dissidents to return 212

8.1.3 Effects of limiting Chinese citizens, especially dissidents to return 214

8.2 Limits on the right to return of Huaqiao 215

8.2.1 Conditions of returning to China for permanent residence or mployment 215

8.2.2 Formalities of returning to China for permanent residence or employment 219

8.2.3 Household registration after returning to China 221

8.2.4 Reasons for the limits imposed on the return of Huaqiao 222

8.2.5 Effects of the limits on the return of Huaqiao 225

8.3 Limits on the right to return of Chinese illegal migrants or FeifaYimin 226

8.3.1 Conditions of passport re-issue, replacement and extension of Chinese illegal migrants 227

8.3.2 Formalities of passport re-issue, replacement and extension of Chinese irregular migrants 230

8.4 The abuse of the right of Chinese nationals not to be exiled 231

Chapter 9 The Right of Travelling to or from the HKSAR, MSAR and Taiwan 235

9.1 Limits on Mainland Chinese travelling to or from the HKSAR or MSAR 235

9.1.1 Unilateral examination and approval of the Mainland government 236

9.1.2 Examination and approval of the fixed-quotas 239

9.1.3 Strict conditions of applying for travel to the HKSAR

or MSAR 240

9.1.4 Different treatment of inland Chinese as opposed to the HKSAR and MSAR Chinese 243

9.2 Limits on Mainland Chinese travelling to or from Taiwan, and Taiwan Chinese travelling to Mainland China 245

9.2.1 The limits on travel to or from Taiwan of Mainland Chinese and the limits on travel to or from Mainland China of Taiwan Chinese 246

9.2.2 The contents and effects of the limits, including the requirements of prerequisite certificates, invitation letters, and approval from Taiwanese authorities 248

9.2.3 Pre-eminently political nature of the limits 250

Chapter 10 Chinese Emigration Intermediary Agency Laws 255

10.1 Why the Chinese government regulates emigration intermediary agencies 257

10.2 The development of Chinese emigration intermediary agency laws 257

10.2.1 Laws governing overseas study intermediary agencies 258

10.2.2 Laws governing exit and entry intermediary agencies for private affairs 259

10.2.3 Laws governing overseas employment intermediary agencies 260

10.2.4 Laws governing foreign labour trade and cooperation company 262

10.2.5 Laws governing international travel agencies 263

10.2.6 Laws governing overseas training at government expense intermediary agencies 264

10.2.7 Laws governing Sino-foreign joint venture skilled personnel intermediary agencies 266

10.3 Issues arising from Chinese emigration intermediary agency laws 266

10.3.1 Excessive demands of licenses and certificates 267

10.3.2 Overly strict admission criteria 268

10.3.3 Irregular examination and approval 270

10.3.4 Non-recognition of Chinese emigration intermediary agencies by foreign Countries 271

10.3.5 Joint liabilities of intermediary agencies 271

10.3.6 Inadequate supervision of the operations of emigration intermediary agencies 272

10.3.7 Administrative system of emigration intermediary agencies 273

Chapter 11 Chinese Exit and Entry Administrative system 275

11.1 Functions of Chinese exit and entry administrative authorities 275

11.1.1 Divisions of the functions of exit and entry administrative authorities 276

11.1.2 Issues and implications of the functions of exit and entry administrative authorities 279

11.2 Discretions of Chinese exit and entry administrative authorities 280

11.2.1 The scope of discretion 280

11.2.2 Issues and implications of discretionary scope 282

11.3 Merits review of administrative decisions regrading exit and entry 284

11.3.1 The mechanism for merits review of administrative decisions 284

11.3.2 Treatment to applicants of the Mainland, HKSAR, MSAR and Taiwan Chinese 285

11.3.3 Relationship between the merits review and external remedies 285

Chapter 12 The need to protect RLR in China, the factors in favour, and resolving practical concerns against it 287

12.1 The needs to protect RLR in China 287

12.1.1 Protecting human rights of Chinese citizens 288

12.1.2 Meeting the demands of a socialist market economy and further opening China to the world community 290

12.1.3 Responding to changing patterns of migration 291

12.1.4 Fulfiling China's international obligations 293

12.2 Factors favouring protection of RLR in China 295

12.2.1 Economic reform 295

12.2.2 Democratisation and Constitutional reform 296

12.2.3 Growing awareness of RLR and growing Chinese communities abroad 297

12.2.4 International environment favouring protection of RLR in China 299

12.3 Practical concerns about protecting RLR in China 300

12.3.1 It would make no practical difference to many Chinese people 300

12.3.2 It would not benefit Chinese personal development when used for a special purpose 301

12.3.3 It would cause the loss of talented Chinese and internal instability 302

12.3.4 It would encourage people to illegally exit China and settle overseas 302

12.3.5 It would damage other States' interests 304

12.3.6 It would be irrelevant to other countries 305

13.1 Factors that help determine the extent of the reform 310

13.2 Recommendations for improving the regulatory framework governing RLR 311

13.2.1 Incorporating RLR into the Constitution 312

13.2.2 The Enactment of a uniform Chinese migration law 313

13.2.3 The establishment of an effective exit and entry administrative system 318

13.2.4 The reform of related laws and regulations 320

13.2.5 The enhancement of public awareness of RLR 321

13.2.6 The acceleration of the use of information technology in exit and entry administration 322

1 The Structure of Chinese State Organisation 325

2 Merits Review of Administrative Decisions under Chinese Administrative Laws and Administrative Procedure Laws 326

3 Admission Criteria of Chinese Emigration Intermediary Agencies 328

4 Functions of Public Security Departments in Relation to Exit and Entry Administration 332

5 Functions of Foreign Affairs Departments in Relation to Exit and Entry Administration 340

6 Functions of Border Security Check and Administration 343

7 Functions of Hong Kong and Macao Affairs Offices, Taiwan Affairs Offices and Overseas Chinese Affairs Offices in Relation to Exit and Entry Administration 345

8 Functions of Departments Responsible for Emigration Intermediary Agencies 347

9 Functions of Other Responsible Governmental Departments in Relation to Exit and Entry Administration 350

10 Functions of Other Departments and Units in Relation to Exit and Entry Administration 352

11 Merits Review of Administrative Decisions Concerned the Imposition of Penalties on Exit and Entry 354

12 Merits Review of Administrative Decisions Concerned the Processing of Applications for Exit and Entry 359

1 Bibliography in Chinese 365

2 Bibliography in English 372

Statutes

1 List of Chinese Statutes 391

2 List of Other States and Region's Statutes 414

3 List of International Instruments 419.

Notes:

Includes bibliographical references and index.

ISBN:

9789004156142

OCLC:

77549458

Publisher Number:

9789004156142