China’s new immigration regime Regulating foreign labour in an emerging destination country Dr Mimi Zou Faculty of Law The Chinese University of Hong Kong

From rural migrants…

… to foreign migrants

Foreign nationals in employment (with legal status) 74,000p in ,000p in ,600 foreign nationals entered China million foreign nationals entered China 2010 National Census 593,832 foreign nationals (excluding Hong Kong, Macao & Taiwan) who are lawfully resident in China for at least six months

The ‘Three Illegalities’ Illegal Work Illegal entry Illegal residence Beijing

Precarious Migrant Status  Characterised by ongoing and ever-present risk, uncertainty, and vulnerability  Intersection and interaction of immigration law and labour law (see Costello & Freedland, 2014)  Implications for migrants’ work relations: immigration controls mould certain types of employment relations (Anderson, 2010)

The (slow) evolution of a labour immigration regime  Law on Control of the Entry and Exit of Aliens 1985  Rules for the Administration of Employment of Foreigners in China 1996  Rules on the Granting of Permanent Residence of Foreigners in China 2004  Regulations on the Management of Work Permits for Foreign Experts Visiting China 2004  Rules on the Social Security Contributions of Foreigners Working in China 2011  Some local-level rules and policy measures

Entry and Exit Administration Law 2013 Need for a new comprehensive national legislation Greater channels for highly skilled migration Coordination between different government departments in administration and enforcement Emphasis on combating the ‘three illegalities’

Entry and Exit Administration Law 2013 Conditions of entry  Strict visa issuance system  Broad powers for immigration officers  Limited routes for less skilled labour migration  Link between insufficient formal channels of labour migration and the growth of ‘illegal’ migration?

Entry and Exit Administration Law 2013 Restrictions on employment  ‘Tying’ of migrants’ legal status to a work permit and a specific work-related residence permit  Migrant must only work for employer on work permit within the geographical area the permit was applied for.  ‘Illegal work’ defined as:  working without a valid work permit,  working outside the scope of occupation/not for the employer prescribed in the work permit,  foreign students working outside prescribed scope of occupation and working hours.

Entry and Exit Administration Law 2013 Sanctions  Much harsher penalties for migrants engaged in illegal work, including fines, detention, and deportation  Some employer sanctions:  fine of 10,000RMB per ‘illegal’ worker, up to maximum of 100,000RMB in total  Confiscation of any monetary gain from the employer resulting from engaging in illegal employment  Intermediaries: limited mention in the Law but fines are imposed on persons and companies who ‘introduce jobs to illegible foreigners’.

Entry and Exit Administration Law 2013 The Public ‘Vigilante’? Article 45 Entities that employ foreigners or enroll foreign students shall report relevant information to local public security organs in accordance with the relevant regulations. Citizens, legal persons or other organizations who find foreigners illegal enter, reside or work in China shall duly report such matter to the local public security organs. Citizens, companies, and other organizations should report clues about foreigners who illegally enter, live, or work in China to local police departments in a timely fashion.

Implications for labour law Art 26 of Labour Contract Law: A labour contract violating ‘mandatory provisions of laws or administrative regulations’ shall be wholly or partially void. Confirmed by the Supreme People’s Court: Where a migrant does not have a work permit as required by immigration law and has requested the court to recognise a labour relationship with the employer concerned (for the purpose of a labour law claim), the court will not support such a case.

Crackdown campaigns 100 day ‘clean up’ campaign in Beijing by local police Report the ‘three illegalities’ to this number! 