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Borders of migration: a comparative legal perspective between EU and China

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Abstract

This article analyses the notion of borders as a comparative perspective between EU external borders and China’s internal borders. Despite the abundant literature investigating EU external borders and China’s internal administrative borders from the perspective of migration, practically no study has attempted a comparison between the two so far. This article argues that China’s internal borders are worthy of consideration within comparative analyses and present the opportunity of improving European understandings of contemporary borders. After outlining the aims, objectives and method of this comparison, a historical background of borders of migration is provided in both contexts. The relationship between borders and legal affiliation at stake of EU external borders and China’s internal borders is then analyzed. The comparative outlook on borders of migration will individuate two alternative declinations of contemporary borders. Since China’s internal borders do not prevent freedom of movement, yet they persistently endure by allocating of Chinese citizens to different welfare statuses, this article argues that traversable but enduring borders currently exist in China. In the case of EU’s external borders, this paper ascertains fortified but inclusive borders as the outcome of an increased securitization coupled with EU’s far-reaching welfare approach.

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Notes

  1. Walters 2002, p. 562.

  2. China’s internal borders as established by the household registration system (huji zhidu 户籍制度) have been instituted by 1958 中华人民共和国户口登记条例 (Household Registration Administrative Regulations) 9 January 1958, National People Congress. The regulations enact an administrative distinction between urban and rural household registration and similarly to a system of internal passports, divide Chinese citizens into different categories according to their birth location. The workings of such system will be explored in detail in the rest of this article.

  3. An exception is Kovacheva et al. 2012, who compare EU Countries nationals’ migration within the EU and China internal migration from the perspective of social rights. From a labor economics perspective, a pioneer study by Cheng et al. 2014 compares inter-migration within the European Union and China.

  4. Ravenstein 1889. German–English geographer Ravenstein posited that migration always concerned mobility from poorer to richer areas.

  5. The tendency to assume the nation state as the natural social and political form of the modern world has characterized all social sciences throughout the XX century and has been defined as methodological nationalism. Wimmer and Schiller 2002, p. 327.

  6. Frankenberg 1985, pp. 452–453.

  7. The principle of functionalism maintains that in order for two things to be comparable, they need to be fulfilling the same function: assuming that societies experience the same problems but employ diverse legal solutions to them, such method would enable to compare things in order to seek “better solutions”. See Zweigert and Kötz 1998. According to some, the functionalist approach as developed by Zweigert and Kötz has been the most influential approach within comparative law studies to the present time. See Frankenberg 1985, Legrand and Munday 2003 and Ruskola 2002.

  8. Ruskola 2013, p. 33.

  9. European Parliament and EU Council Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third- country nationals [2008] OJ L 348/98 at Art. 3(1) defines Third Countries nationals as “any person who is not a citizen of the European Union within the meaning of Article 20(1) of the Treaty on the Functioning of the European Union and who is not a person enjoying the Union right to freedom of movement, as defined in Article 2(5) of the Schengen Borders Code.”

  10. Vasileva K “6.5 % of the EU population are foreigners and 9.4 % are born abroad”, EUROSTAT, Statistics in Focus 34/2011 p. 1. http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-SF-11-034/EN/KS-SF-11-034-EN.PDF. Accessed March 13 2014.

  11. According to 2010 China National Census, the internally “floating” population (liudong renkou 流动人口) living (for over 6 months) in places other than their original place of household registration in mainland of China was estimated to be 261 million people. The statistics does not specify whether the floating population had legal residence (i.e. a residence permit or a temporary residence permit). I deduce from that that the number includes both legal and illegal residents in Chinese cities. See 2010 China National Census. http://www.gov.cn/test/2012-04/20/content_2118413.htm. Accessed 13 March 2014.

  12. The 2010 China National Census covered for the first time the count of foreigners (along with residents from Hong Kong, Macao and Taiwan) who had stayed for more than 3 months, or planned to stay for more than 3 months in China as of November 2010. https://web.archive.org/web/20110514214156/http://www.stats.gov.cn/english/newsandcomingevents/t20110429_402722638.htm. Accessed 13 March 2014.

  13. The estimated number of international migrants worldwide as of 2010 was of 214 million people. IOM World Migration Report 2010, The Future of Migration, Building Capacities for Change, p. 1. http://publications.iom.int/bookstore/free/WMR2010_summary.pdf. Accessed 13 March 2014.

  14. Chen 2004, p. 52.

  15. In order to pursue that, the Treaty envisaged the establishment of three common minimum requirements: an efficient managing of migration flows; a fair treatment of Third Country nationals residing legally in EU; the prevention and combat of illegal immigration and human trafficking. See Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (Lisbon Treaty) 2010/C 083/01 OJ L C 83, Art. 79.

  16. 国务院办公厅关于积极稳妥推进户籍管理制度改革的通知 (Notice on Actively and Steadily Promoting the Reform of the Household Registration System) 26 February 2011, State Council, Point 5.

  17. As established by the Maastricht Treaty, every citizen of any EU member State has the right to free movement and free residence within the territory of all Member States (Art. 18); moreover, it prohibits any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment (Art. 47). See also Lisbon Treaty Art. 21.

  18. Ireland and the United Kingdom are currently opting out from most of Schengen agreements although they cooperate in the field of police and judicial cooperation in criminal matters, fight against drugs and the Schengen Information System. In addition, states of most recent membership (Bulgaria, Cyprus, Romania) are set to acquire Schengen membership at a later stage while four non EU countries (Iceland, Liechtenstein, Norway and Switzerland) are already part of Schengen.

  19. Hong Kong, Macau, and Taiwan will not be considered in this article as their immigration legislation is further separated from that of mainland China.

  20. Frankenberg 1985, p. 415.

  21. Drawing on post-colonial studies, the concept of legal Orientalism as developed by Ruskola relies on Said’s insights on Orientalism, illustrating how knowledge about the Other is a fundamental tool of defining one’s own identity. Said’s analysis importantly illustrates how European literary and artistic production in the last few centuries has often depicted the Other (or else, the “Oriental”) as a deviation of Western culture, and accorded it an inferior status. This representation, which has entertained a close relationship with the legitimation of colonial and imperialist ambitions, has been fundamental for the definition of Western identity and is transferred by Ruskola to the field of comparative legal studies. See Ruskola 2002, 2013.

  22. Ruskola 2013, p. 5. For example, Chinese scholars use representations of Western law for their own purposes, to confirm their own self-understandings of what Chinese law is. This often exists in the form of Chinese self-Orientalism, espousing the idea of a Western legal superiority, but also, alternatively, as a self-definition against the Western Other. Ruskola 2002, p. 223.

  23. Ruskola 2013, pp. 54–55.

  24. Lisbon Treaty Art. 21.

  25. Lisbon Treaty Art. 9.

  26. For instance, from an irregular migrant status in an EU Member State, some individuals turned into EU Country nationals when their country joined the EU. See Guild 2011, p. 213.

  27. All restrictions have finally been lifted on January 1st 2014 for the last two countries, Bulgaria and Romania.

  28. Papadopoulos 2012, p. 24.

  29. Ibid.

  30. European Parliament and EU Council Regulation 562/2006/EU, establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) [2006] OJ L 105/1. Currently, UK and Ireland are still opting out of Schengen while Denmark is now part of the Schengen area.

  31. European Parliament and EU Council Regulation 562/2006/EC, establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) [2006] OJ L 105/1 Art. 2.

  32. Groenendijk et al. 2003, Bigo and Guild 2005, Rigo 2007, Mitsilegas and Ryan 2010.

  33. 中华人民共和国户口登记条例 (Household Registration Administrative Regulations) 9 January 1958, National People’s Congress.

  34. The practice of household registration, which evolved progressively into a registration for purposes of taxation, conscription and social control, dates back as early as Zhou Dynasty period (685 BC). After the end of the Qing dynasty in 1911, Chinese leaders sought assistance from abroad to modernize the country both politically and economically. The country which mostly provided consistent support was the Soviet Union, which was taken as a model for industrialization and development. Among the institutions that China borrowed from the Soviet Union in the 1950s was the system of “propiska” (internal passports). See Nyiri 2010, pp. 10–11.

  35. Walder 1986, pp. 37–38.

  36. 中华人民共和国宪法 (Constitution of People’s Republic of China) 20 September 1954, National People Congress, Art. 90 and 中华人民共和国宪法 (Constitution of People’s Republic of China) 17 January 1979.

  37. Chan 2009, p. 201.

  38. 关于农民进入集镇落户问题的通知 (Notification on the Question of Peasants Entering Towns) 13 October 1984, State Council, Art. 1.

  39. 中华人民共和国居民身份证条例 (Regulations on Resident Identity Card in the People’s Republic of China) 6 September 1985, Standing Committee of the National People’s Congress, Art. 6.

  40. Wong and Wai-Po 1998, p. 976.

  41. Wang 2005, pp. 62–63, in particular the secrecy is regarding the database of hukou information about the targeted population (zhongdian renkou 重点人口), individuals considered a threat to the socio-political order.

  42. 农村劳动力跨省流动就业管理暂行规定 (Temporary Regulations for Inter-Provincial Migration of Rural Labourers) 17 November 1994 (now invalid) Ministry of Labour, Art. 12.

  43. 暂住证申领办法 (Method for application for temporary residence permits) 2 June 1995, Ministry of Public Security.

  44. 国务院办公厅关于做好农民进城务工就业管理和服务工作的通知 (Notification on Improving the Work of Managing and Providing Services to Peasants Who Move to Cities for Work) 5 January 2003. See Xiang 2007, p. 6.

  45. 国务院办公厅关于积极稳妥推进户籍管理制度改革的通知 (Notice on Actively and Steadily Promoting the Reform of the Household Registration System) 26 February 2011, State Council, point 9.

  46. 中华人民共和国国民经济和社会发展第十二个五年规划纲要 (The 12th Five Year Plan on National Economic and Social Development of People’s Republic of China) 18 October 2010, the Fifth Plenary Session of the Seventeenth Central Committee of the Chinese Communist Party.

  47. 公安部: 2020年形成新型户籍制度 (Ministry for Public Security: advancing the hukou system reform by 2020), 新京报 (Beijing News) 18 December 2013. http://www.sina.com.cn/2013-12-18/023929011292.shtml. Accessed 19 December 2013.

  48. 国务院关于进一步推进户籍制度改革的意见 (State Council Opinion on Promoting the Advancement of The Reform of the Hukou System) 30 July 2014, State Council, points 9.

  49. Ibidem, points 5–7.

  50. European Parliament and EU Council Regulation 810/2009/EC establishing a Community Code on Visas (Visa Code) OJ L 243.

  51. Council Regulation 539/2001 listing the Third Countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement [2001] OJ L 081, p. 1.

  52. European Parliament and EU Council Directive 2004/82/EC on the obligation of carriers to communicate passenger data [2004] OJ L 261.

  53. European Parliament and EU Council Regulation 562/2006/EC, establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) [2006] OJ L 105/1, Art. 5.

  54. European Parliament and EU Council Directive 2004/82/EC on the obligation of carriers to communicate passenger data [2004] OJ L 261.

  55. Guild 2007, p. 51.

  56. Guiraudon 2003, p. 199.

  57. http://ec.europa.eu/immigration/tab2.do?subSec=11&language=7$en. Accessed 25 April 2014.

  58. Council Directive 2003/86 on the right to family reunification [2003] OJ L 251/12, Art. 4.

  59. European Parliament and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L 158/47, Art. 3 (1).

  60. ECJ Case C-127/08 Blaise Baheten Metock and Others v. Minister for Justice, Equality and Law Reform ECR I-6241.

  61. European Parliament and Council Directive 2004/38, Art. 16.

  62. Council Directive 2003/86/EC on the right to family reunification [2003] OJ L 251/12, Art. 3.

  63. European Parliament and EU Council Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L 398/98, Art. 6 point 2.

  64. Besselink et al. 2010, pp. 130–131.

  65. Faure-Atger 2011, p. 158.

  66. Council Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment [2009] OJ L 155/17, Art. 15, 18–19.

  67. Council Directive 2004/114/EC on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service [2004] OJ L 375/12 Art. 12. Council Directive 2005/71/EC on a specific procedure for admitting third-country nationals for the purposes of scientific research [2005] OJ L 289/15 Art. 8.

  68. Moraes Claude (European Parliament member) Debunking the myths of the EU Seasonal Workers Directive, The European Network Against Racism (ENAR). http://www.enargywebzine.eu/spip.php?article286. Accessed 25 April 2014.

  69. European Parliament and Council Directive on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers 2014/…/EU (not published on OJ L yet), proposal approved on 7 February 2014.

  70. For example, in February 2014 the Maltese government has introduced a scheme selling Maltese passports for €650,000 each. Differently from schemes existing in other EU countries, the Maltese one has provoked controversies at the EU level as applicants do not have to reside in Malta to obtain it and can get citizenship after six months of “due diligence”. EU institutions attack Malta passport scheme. EU Observer.com, EU institutions attack Malta passport scheme, 16 January 2014. http://euobserver.com/justice/122744. Accessed 16 January 2014.

  71. Guild 2011, pp. 217–218.

  72. Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents [2003] OJ L 16/44, Art. 4.

  73. Besselink et al. 2010, p. 137.

  74. Mantu 2011, p. 232.

  75. See http://eudo-citizenship.eu/country-profiles. Accessed 15 June 2013.

  76. Besselink et al. 2010, p. 137.

  77. The majority of EU Countries allows double nationality with the exception of seven (Austria, Czech Republic, Denmark, Estonia, Germany, Lithuania and Slovakia). With the exception of France, which entitles of nationality on the basis of jus soli, among EU Countries national laws the most common way to be entitled of citizenship at birth is through family relations with a national (jus sanguinis).

  78. 中华人民共和国户口登记条例 (Household Registration Administrative Regulations) 9 May 1958, National People’s Congress, Art. 15–16.

  79. 国务院批转公安部关于解决当前户口管理工作中几个突出问题意见的通知 (Notice of Opinions of the Ministry of Public Security on Solving Several Current Prominent Problems on Hukou Management with approval of the State Council) 23 June 1998, Ministry of Public Security, Art. 1.

  80. 中华人民共和国居民身份证法[2011修正] (Law of the People’s Republic of China on Resident Identity Cards [2011 Amendment]) 29 October 2011, Standing Committee of the National People's Congress, Art. 10.

  81. Since 1979, the one-child policy restricts couples in urban areas to only one child (exceptions are made for couples in rural areas, ethnic minorities and couples who both lack siblings); the policy has been recently eased by a NPC Standing Committee resolution 全国人民代表大会常务委员会关于调整完善生育政策的决议 (Standing Committee of the National People's Congress Resolution about revising the child-bearing policy), 28 December 2013. http://news.xinhuanet.com/2013-12/28/c_118749204.htm. Accessed 25 April 2014.

  82. 非婚生子女”的户口困境 (Illegal children’s hukou dire straits), Xinhua news 30 March 2014. http://news.xinhuanet.com/local/2014-03/30/c_1110009695.htm. Accessed 25 April 2014.

  83. Blue chop hukou regulations exist only at the level of local (provincial or metropolitan) policies. Large cities such as Shanghai and Guangzhou introduced it in the early 1990s. See for example the currently effective 上海市人民政府关于修改〈上海市蓝印户口管理暂行规定〉的决定 (Shanghai Government regulation amending the “Provisional Regulations on the management of Shanghai blue chop hukou”) 26 October 1998, Shanghai Government; 广州市蓝印户口管理规定 (Regulations on the management of Guangzhou blue chop hukou), 1 October 1999, Guangzhou Government.

  84. 公安部关于城镇暂住人口管理的暂行规定 (Provisional Regulations on the Management of the Population Living Temporarily in Cities and Towns) 13 July 1985, Ministry of Public Security, Art. 1.

  85. 关于进一步深化普通高等学校毕业生就业制度改革有关问题意见的通知 (Notice on the Suggestion relating to the Question of Reforming the System of Obtaining Employment for Universities Graduates) 2 March 2002, State Council. Art. 7.

  86. Luo 2012, pp. 129–130.

  87. 国务院办公厅关于积极稳妥推进户籍管理制度改革的通知 (Notice on Actively and Steadily Promoting the Reform of the Household Registration System) 26 February 2011, State Council, Point 2.

  88. Ibid.

  89. Wang 2005, pp. 91–101.

  90. 中华人民共和国兵役法(1998修正) [Military Service Law of the People’s Republic of China (1998 Amendment)] 29 December 1998, Standing Committee of the National People's Congress, Art. 56.

  91. Wang 2005, p. 92.

  92. Ibid. p. 92.

  93. Ibid. pp. 92–93.

  94. Ibid. p. 93.

  95. 国务院批转公安部关于解决当前户口管理工作中几个突出问题意见的通知 (Notice of Opinions of the Ministry of Public Security on Solving Several Current Prominent Problems on Hukou Management with approval of the State Council) 23 June 1998, Ministry of Public Security, Art. 1.

  96. Wang 2005, p. 94.

  97. According to the National Bureau of Statistics of China, by the end of 2012 urban population accounted for 52.6 % of total population and approximately 260 million urban residents lacked urban permanent residence permit. http://news.xinhuanet.com/politics/2013-02/23/c_114772758.htm. Accessed 25 April 2014.

  98. See He 2003, 2005, Wang 2005.

  99. Groenendijk et al. 2000, p. 105.

  100. For example in Italy, Testo Unico sull’ Immigrazione (Immigration Act), Legislative decree 25 July 1998 (as amended in March 2014), entitles Third Countries minor nationals free access to schooling regardless their irregular status (Art. 38) and generally grants Third Countries nationals basic healthcare regardless their irregular status (Art. 35).

  101. European Parliament and EU Council Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L398/98, Art. 6 point 2.

  102. Annex VI of the Schengen Borders Code OJ L 105, 13 April 2006, p. 1.

  103. This reality is reflected in European Parliament and EU Council Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L 348/98, Chapter IV.

  104. Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2004] OJ L 349/1.

  105. In this respect, an important judgment was given recently by the European Court of Human Rights in Hirsi Jamaa and Others v. Italy, Application no. 27765/09, Council of Europe: European Court of Human Rights, 23 February. The court ruled that Italy’s policy of intercepting and pushing back boat migrants to Libya was illegal. Such decision creates an important precedent towards the revision of EU Member governments’ border and refugee policies.

  106. European Migration Network Report 2007 p. 17. http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/immigration/pdf/general/emn_synthesis_report_illegal_immigration_final_january_2007.pdf. Accessed 25 April 2014.

  107. 国务院办公厅关于积极稳妥推进户籍管理制度改革的通知 (Notice on Actively and Steadily Promoting the Reform of the Household Registration System) 26 February 2011, State Council.

  108. See for example Chengdu and Chongqing中共成都市委成都市人民政府关于全域成都城乡统一户籍实现居民自由迁徙的意见 (Opinion on a unified hukou registration system for the whole Chengdu municipality carrying out residents’ freedom to migrate) 9 November 2010, Chengdu CPC Central Committee and Chengdu Municipal Government; 重庆市人民政府关于统筹城乡户籍制度改革的意见 (Opinion on reforming the hukou system as a whole in urban rural areas) 29 July 2010, Chongqing Municipal Government.

  109. See for example Shenzhen 深圳市居住证暂行办法 (Interim Measures of Residential Cards in Shenzhen) 20 May 2008, Shenzhen Municipal Government.

  110. See for example Fujian Shandong and Liaoning provinces 福建省人民政府批转省公安厅关于户籍管理制度改革意见的通知 (Notice on the Opinion submitted by the Municipal Public Security Bureau regarding the Administration of Hukou System Reform) 25 December 2001, Fujian Municipal government; 山东省人民政府办公厅转发省公安厅关于进一步深化户籍管理制度改革的意见的通知 (Notice on transmitting the Public Security Bureau Opinion regarding a further deepening of hukou system reform) 12 August 2004, Shandong Municipal Government; 辽宁省深化户籍管理制度改革若干规定 (A number of Regulations deepening the reform of the Administration of hukou system) 20 April 2009, Liaoning Municipal Government.

  111. Tao R “Achieving real progress in China’s hukou reform” in East Asia Forum, 8 February 2010 http://www.eastasiaforum.org/2010/02/08/achieving-real-progress-in-chinas-hukou-reform/. Accessed 19 December 2013.

  112. 城市流浪乞讨人员收容遣送办法 (Measures for the Custody and Repatriation of Vagrant Beggars in Cities) 12 May 1982, State Council, Art. 2.

  113. On March 20, 2003, Wuhan University graduate Sun Zhigang had just relocated to Guangzhou for a job and was waiting to receive his temporary job permit. Stopped on the street and found without a valid work permit by police, he went to be put into a detention facility. Three days later, he was found beaten to death by his inmates (with the collusion of police officers in charge). Largely covered by media and receiving massive public outcry, Sun Zhigang case represents a landmark case across China: triggering debates over the question of the constitutionality of the Custody and Repatriation regulations, as well as the proportionality and reviewability of administrative punishments. 孙志刚刑事案件 (Sun Zhigang Criminal Case) 9 June 2003, 广州市中级人民法院 (Guangzhou Intermediate People’s Court) in 广州审判网 (Website of the Guangzhou Intermediate People’s Court). http://www.gzcourt.org.cn/. Accessed 19 December 2013.

  114. Lu 2009, p. 133.

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Acknowledgments

This article was made possible by a scholarship from China-EU Law School at China University of Political Science and Law, Beijing. I would also like to thank Prof. Bjorn Ahl (University of Cologne) and two anonymous reviewers for their comments on earlier versions of this article.

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  1. Birkbeck School of Law, University of London, London, UK

    Paola Pasquali

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Pasquali, P. Borders of migration: a comparative legal perspective between EU and China. China-EU Law J 4, 223–242 (2015). https://doi.org/10.1007/s12689-014-0046-8

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