Nationality law of the People's Republic of China

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For other uses, see Chinese nationality.

The Nationality Law of the People's Republic of China (simplified Chinese: 中华人民共和国国籍法; traditional Chinese: 中華人民共和國國籍法; pinyin: Zhōnghuá Rénmín Gònghéguó guójí fǎ) regulates nationality of the People's Republic of China. Such nationality is obtained by birth when at least one parent is of Chinese nationality or by naturalisation.

The constitution of People's Republic of China states that all persons holding nationality of the People's Republic of China are citizens of the People's Republic of China.[1] Although in practice, the de facto citizenship of China Mainland is the hukou, while the two SARs, Hong Kong and Macau, each has their own rules on the rights of abode in these territories.

The law was adopted at the Third Session of the Fifth National People's Congress and promulgated by Order No. 8 of the Chairman of the Standing Committee of the National People's Congress and effective as of September 10, 1980.

History[edit]

Prior to the Communist government's establishment in 1949, the Republic of China's nationality law, enacted in 1929, served as the basis for Chinese nationality for Chinese residing in China Mainland. ROC's 1929 nationality law was in force only in Taiwan after 1949 when the Kuomintang government lost the civil war, until it was revised in 2000 (see Nationality law of the Republic of China for more details).

From the establishment of the Communist regime on 1 October 1949 to 9 September 1980, the PRC has no statutory nationality law except for the Sino-Indonesian Dual Nationality Treaty adopted in 1955, which was a bilateral treaty between the PRC and Indonesia's Sukarno government instead of a statutory law. From the period between 1949 to 1955, the PRC recognized dual nationality as do the ROC, therefore the Treaty was the first regulation in Chinese history to ban dual nationality between China and other countries.[2]

On 10 September 1980, PRC's current and only statutory nationality law went into effect. The law itself, however, has been criticized for being outdated as many countries have amended their nationality laws to allow dual nationality since 1990s, and the opinions on whether China should fully permit dual nationality has constantly resulted in heated debates.[2] It is worth-noting that dual nationality is still possible under the current nationality law (see "Dual nationality" below).

Nationality by birth[edit]

Chinese nationality law operates mainly on the basis of jus sanguinis ("right of blood"). On 1 October 1949, most nationals of the Republic of China remaining in China Mainland were recognized as nationals of the People's Republic.[3] As the PRC had yet to adapt a statutory nationality law at that time, these people were not de jure naturalized.

According to the Nationality Law, a person can acquire a Chinese nationality if he or she meets one of the following requirements (Article 5):

  • Is born in China and at least one parent holding Chinese nationality.
  • Is born outside China and at least one parent has Chinese nationality, so long as the Chinese-national parent(s) have not settled in a foreign country.
  • Is born in China and both parents are settled in China with statelessness or uncertain nationality.

The term "settled" is usually taken to mean that the Chinese national parent has permanent residency in another country. A person born outside China to parent(s) with Chinese nationality, does not have Chinese nationality if a foreign nationality is acquired at birth and one of the Chinese national parents (or both) has gained that country's permanent residency.

In practice, Chinese authorities do recognize some children's Chinese nationality when parents are settled abroad because some countries' nationality laws state that the newborn children do not acquire that country's nationality even when both parents are permanent residents of that country (in the case of Japan, nationality is acquired only when at least one parent is a Japanese citizen). In order to prevent statelessness of these children, Chinese authorities in these countries issue passports (proof of Chinese nationality) to these newborns. This is mostly applied to Chinese-born children in Japan, giving that the large number of Chinese nationals residing there.[4]

Another example, involving nationality by birth, especially in jus soli countries, including the US, would be that if a child was born in the United States by two Chinese-national parents, and one of them has already acquired US permanent residency, but the other one has only temporary status in the US (e.g.: F-1 or H-1B), then the child is not a Chinese national at birth since one of his parents has settled abroad. However, if the parent with permanent residency had completed the naturalization process as a US citizen prior to the child's birth, then the child is a Chinese national at birth, since his other parent has not settled abroad and is a Chinese national (albeit the parent with US citizenship has already lost his or her Chinese nationality).

Children born of Chinese-foreign marriages on territories controlled by People's Republic of China are considered to be Chinese nationals by the government of the People's Republic of China, as per Article 4 of the Chinese nationality law. This can create problems when the Chinese-national parent gives birth to, or fathers, a child with a non-Chinese-national parent in mainland China without the prior approval from the National Population and Family Planning Commission. In this case, the child is not eligible for Chinese Hukou, and subsequently cannot qualify for a Chinese passport. Furthermore, the said child's foreign citizenship acquired through jus sanguinis is not recognized by Chinese authorities as per Article 3 of Chinese nationality law, so he or she cannot use the non-Chinese travel document to exit and enter the country. Therefore the child's parents must secure an Exit-Entry Permit from the Chinese government in order for the child to exit and enter China mainland.[5]

Naturalization[edit]

A person can apply for naturalization as a Chinese national if he or she meets one of the following criteria:

  • Is a near relative of Chinese nationals;
  • Has "settled" in China (no amount of time is specified to be considered as "settled"); or
  • Has other "legitimate reasons". (The term "legitimate reasons" is not further defined in the Nationality Law.)

Similar to Japan's nationality laws, Chinese nationality law does not require non-Chinese nationals to become Chinese permanent residents before naturalization, and in addition, those who naturalize in China, including Hong Kong and Macau, must renounce their foreign nationalities (Article 8).[6]

Naturalizing as a Chinese national is rare. During the Fifth National Population Census of the People's Republic of China (2000), only 941 naturalized citizens not belonging to any of China's recognized 56 indigenous ethnic groups (which includes Koreans, Vietnamese, and Russians)[7] were counted in China's mainland.[8] More foreigners have applied for naturalisation to Chinese nationality since Hong Kong has reverted to Chinese sovereignty in 1997. Among Hong Kong residents from 1997 to 2012, 3,411 Pakistanis, 3,399 Indonesians, 2,487 Indians, 1,115 Vietnamese, and 387 Filipinos have been naturalised.[9]

Loss, termination and renunciation of nationality[edit]

Chinese nationality is automatically lost (or terminated) when a person has settled abroad and pursues one of the following acts (Article 9):

  • naturalizes as a citizen of another country (regardless of whether the naturalization is involuntary), or
  • voluntarily acquires the nationality (through naturalization or registration) of another country.

The term "settled" has the same definition as above.[6]

For example, a Chinese national who possesses Canadian permanent resident status and who naturalizes as a Canadian citizen loses his Chinese nationality upon the completion of his naturalization because he has voluntarily acquired Canadian citizenship while settled abroad (holding Canadian permanent residency), and any minor children under the age of 18 he might have also loses Chinese citizenship if the children have naturalized as Canadians along with their parent, regardless of whether the children's acquisition of Canadian citizenship is against their will.

However, Article 9 is de facto not applicable to Chinese nationals who are permanent residents of Hong Kong and Macau, as each of the SARs has authorizations from National People's Congress to a "different interpretation" of the nationality law, so their Chinese nationality cannot be automatically terminated. Although they can request the termination of their Chinese nationality by reporting the acquisition of new nationalities to their respective governments and demanding the recognition of their foreign nationalities (officially known as the "declaration of change of nationality"). If the person currently resides in Hong Kong or Macau, this termination has no effect on his permanent resident status in Hong Kong or Macau (see "Hong Kong and Macau" below). This type of loss of Chinese nationality is different from renunciation.

Most Chinese nationals can renounce their Chinese nationality upon approval (Article 10), except for state functionaries and active military personnel (Article 12). The renunciation requirements are:[6]

  • Having foreign-national relatives;
  • Settled abroad; or
  • Other legitimate reasons. (The term "legitimate reasons" is not further defined.)

Similar to US nationality law, Chinese nationality law does not require Chinese nationals to acquire another country's citizenship in order for renunciation. Therefore, it's possible for a Chinese national to become stateless after the renunciation of his Chinese nationality. China Mainland is also not a signatory to the 1954 Convention relating to the Status of Stateless Persons and 1961 Convention on the Reduction of Statelessness, although Hong Kong (then under British control) is a party to both conventions.

An application for renunciation can be filed either domestically with a city or county public security bureau's exit-entry administration, with a PRC embassy or Consulate abroad, or with governments of Hong Kong or Macau SARs. The time period for processing an application is not specified by rules, and it can take up to one year.[10]

Chinese nationality law is unclear on whether the involuntary acquisition of another country's nationality can cause the loss of Chinese nationality. An example would be a Chinese woman marries a man from a country observing jus matrimonii (e.g. Iran), in which case she automatically becomes an Iranian national upon marriage. Also, Article 9 explicitly states that only Chinese nationals residing abroad who voluntarily acquires another country's citizenship shall be deemed as forfeiture of Chinese nationality, so it's also unknown whether a Chinese national residing in China (i.e., no permanent residencies in any foreign countries) who obtains economic citizenship in another country loses Chinese nationality.

Restoration of nationality[edit]

A person who has lost or renounced his Chinese nationality can request to restore his Chinese nationality, according to Article 13 of the nationality law, if they have "legitimate reasons".[6] The term "legitimate reasons" is also not further defined. Foreign nationality must be renounced if approved.

Visa requirements[edit]

Visa-free travel for PRC citizens with ordinary passports

Visa requirements for Chinese citizens are administrative entry restrictions by the authorities of other states placed on citizens of the People's Republic of China. In 2014, Chinese citizens have visa-free or visa on arrival access to 45 countries and territories, ranking the Chinese passport 83rd in the world according to the Visa Restrictions Index.

Dual nationality[edit]

The People's Republic of China does not recognize dual nationality with any other country (Article 3),[6] however in reality this article is poorly enforced due to technical difficulties.[11] It is worth noting that unlike Indian nationality law, Chinese nationality law does not have any provisions restricting Chinese nationals from holding foreign passports, although naturalizing in a foreign country while settling abroad will cause the de jure loss of Chinese nationality (see "Loss of nationality" above)

Although it is generally difficult to have de facto dual nationality of China and another country, due to the provisions for loss of Chinese nationality when a Chinese national naturalizes in another country (see "Loss of nationality" above), and the stipulation that a foreigner who naturalizes in China cannot retain their foreign nationality (see "Naturalization" above), the number of dual nationals have, nevertheless, increased in recent years. This is mainly because birth tourism has become popular among Chinese nationals residing in China, who travel to countries observing jus soli to ensure their offspring acquires the birth country's nationality. Cases involving dual nationality is covered, although not explicitly stated, under the Nationality Law, which ensures the possibility for a person to have dual nationality of China and another country at birth in some circumstances. For example:

  • If the person was born in China Mainland, Hong Kong or Macau to one Chinese-national parent, he is a Chinese national at birth (Article 4). If his other parent is a non-Chinese national, he might acquire additional nationalities at birth through jus sanguinis from the non-Chinese parent.
  • If the person was born outside China Mainland, Hong Kong or Macau to one or two Chinese-national parents who have not settled abroad, he is a Chinese national at birth (Article 5). He may acquire additional nationality (nationalities) at birth through jus soli, if born in a jus soli country; or from his other parent (if only one parent was a Chinese national) through jus sanguinis; or both. Article 5 is applicable to children holding Chinese Travel Documents, mostly children of birth tourists, and serves as the legal basis of these children's Chinese nationality.

If a person concurrently holds Chinese nationality and foreign nationality (regardless of whether he currently has residences in Hong Kong, Macau or Mainland China), he or she will be treated solely as a Chinese national when the person is physically present on PRC soil (including Hong Kong and Macao), as per Article 3.[6] The basis of the loss and renunciation of Chinese nationality for dual citizenship holders is the same with sole Chinese citizenship holders per Article 9 and Article 10.[6]

However, one does not have Chinese nationality if their parents (with Chinese nationality) themselves settle permanently outside China (see "Nationality by birth" above). This means in general, most second generation overseas Chinese ("ABC", "BBC" or "CBC") and many South East Asian nationals of Chinese ethnicity are not Chinese nationals (although some may qualify for nationality of Taiwan).

In general, Hong Kong and Macau citizens with Chinese ethnicity are Chinese nationals, regardless if they have dual nationality or not (see below).

Hong Kong and Macau[edit]

The People's Republic of China considers both Hong Kong and Macau to have always been its territories, and people born in either territory before or after their transfer of sovereignty to China are regarded as "born in China". Those who are of ethnic Chinese origin are Chinese nationals before and after the handovers. Having said that, people born in Hong Kong or Macao in the years before handover, were given nationality of Britain or Portugal respectively.

Hong Kong[edit]

For Hong Kong residents, an interpretation of the Nationality Law was adopted at the Nineteenth Session of the Standing Committee of the Eighth National People's Congress on May 15, 1996,[12] a year prior to the Hong Kong handover and came into effect on July 1, 1997. The explanations concerning the implementation of the nationality of Hong Kong residents is that Hong Kong residents of Chinese descent are Chinese nationals, whether or not they have acquired the right of abode in foreign countries. In effect this means foreign nationalities under the respective foreign laws; the reason for referring to the foreign "right of abode" instead of foreign nationality is avoid making an exception to, or breaching, the basic principle of Chinese Nationality Law of non-recognition of dual nationality, and also because China regards foreign control of Hong Kong to have been illegitimate, and thus refuses to recognise the foreign nationality conferred upon many Chinese people in Hong Kong.

Hong Kong residents of Chinese nationality do not lose their Chinese nationality automatically upon acquiring foreign one(s), unless they had already been settled in the foreign country, in accordance with the initial words of Article 9. Hong Kong is not recognised as foreign territory whether before or after 1 July 1997. Such Chinese nationals who acquire foreign nationality (and thus change their nationality in accordance with Article 9) may declare such change of nationality at Hong Kong's Immigration Department. Once the declaration is made, such persons would no longer be considered Chinese nationals.

As under Chinese law the relevant forms of British nationality were not acquired after being settled in a foreign country, the British Dependent Territories citizen and British Nationals (Overseas) passports held by people of Chinese descent born in China (including Hong Kong) are not recognised by the Chinese government as such. British Citizen passports held by Chinese Hong Kong residents under the British Nationality Selection Scheme (British Nationality (Hong Kong) Act 1990) are also not recognised by the Chinese government as such. Furthermore, Hong Kong Chinese nationals who hold such passport or have a right of abode in countries outside the People's Republic of China are not entitled to British (or any other nation's) consular protection inside the People's Republic of China (including Hong Kong, Macau and mainland China).

Naturalisation
Collected statistics on naturalisation in Hong Kong
Years ↓ Applications Notes
Acceptances ↓
July 1997 to
April 2005
4,372 3,786 [13]
2006 1,840 [14]
2007 1,541 [14]
2008 1,295 71% [14][15]
2009 [14][15]
2010 729 [15]

The Immigration Department is authorised to naturalise foreign or stateless people as Chinese nationals in Hong Kong. In the first year after the handover, there were only 152 applications for naturalisation; the majority of applicants were Chinese Indonesians.[16] Some residents of South Asian descent, faced with the prospect of their children being stateless, have been naturalised as well. However, in the early years after the handover South Asians claimed that the Hong Kong government discouraged them from naturalisation. It took until December 2002 to see the first case of successful naturalisation application by an ethnic minority resident with no Chinese relatives, a Sindhi girl, soon followed by a Pakistani man. The Immigration Department denied that there had been any change in policy, but South Asian organisations believed there had been a definite change of attitude inside the government towards naturalisation.[17][18] From the handover to April 2005, a total of 4,372 people applied for naturalisation. Of the 3,999 applications processed by that date, 3,786 (95%) were successful. Most applicants were Indonesians (1,735), Pakistanis (833), Indians (552), or Vietnamese (547). (These numbers refer to former nationality; the government did not collect statistics on their ethnic background.)[13] From 2008 to 2010, another 4,099 applications for naturalisation were received, of which 71% were approved; eight-tenths of the applicants were nationals of South Asian countries.[15]

Macau[edit]

Similar implementation for Macau was adopted at the Sixth Session of the Standing Committee of the Ninth National People's Congress on December 29, 1998. Unlike the UK, Portugal did not have an overseas nationality, which means that residents of Macau had the same right to Portuguese nationality as those in Portugal. Unique provisions includes clarification for individuals of both Chinese and Portuguese descent, who may choose either Chinese or Portuguese nationality without losing right to abode. Negotiations between China and Portugal over Macau were considerably smoother than those between the United Kingdom and China over Hong Kong, and in the former a pragmatic practical agreement was understood making double nationality possible "de facto" for Chinese and Portuguese nationals with a previous or ongoing relation to Macau.

Chinese nationality and hukou[edit]

For more details on this topic, see Heihaizi.

The National Household Registration System, also known as hukou, serves as the de facto citizenship for Chinese nationals residing in Mainland China. Despite Article 33 of the Constitution declared all nationals to be citizens of the PRC, there are still a number of Chinese nationals without hukou, rendering them nationals without citizenship.

Under the Nationality Law, any person born to a Chinese national parent in China (including Hong Kong and Macao) is a Chinese national at birth as per Article 4. However, due to the strict enforcement of the controversial One-Child Policy in Mainland China, some children, whose births were in violations of the local birth-planning policies (e.g. born as the second or third child to the parents), did not have their births registered despite Article 7 of the Household Registration Ordinance requires the birth of a child to be registered within one month from the date of birth.[19] As their births were not registered, they are not eligible for hukou. The reason for not registering is either because their parents chose to avoid the unaffordable fines (two to six times of the parents' combined annual income) imposed by the National Population and Family Planning Commission in the region, or because officials in the local NPFPC had refused the child's registration because of the officials' fear of possible disciplinary actions taken against them for not enforcing the birth control rigorously in the region. As a direct result from the lack of hukou, these children are denied basic rights to citizens, including social welfare, education, and treatments in hospitals. They also cannot obtain Chinese ID cards, which are critical for travelling inside Mainland China, opening bank accounts, applying for jobs, and getting Chinese passports. The number of people without hukou was estimated at 13 million in 2011, or one percent of the total population at that time.[20]

A similar status, National without household registration, also exists in Republic of China. The main differences are that NWOHRs exist in the legal concepts of the ROC, are usually residents of other countries than Taiwan, and have official identification documents issued by Government of Republic of China (usually Taiwanese passports); while Chinese nationals without hukou are not mentioned in any legal documents in China, all reside in Mainland China, and are not eligible for any official identification documents. However, Chinese nationals without hukou are not subject to any immigration controls nor legal restrictions on employments (as they are not mentioned in any legal documents and cannot obtain passports), unlike NWOHRs, who can only remain in Taiwan for a limited period of time with special visas and cannot take up employments without the consent from the ROC Government.[21]

See also[edit]

References[edit]

  1. ^ Constitution of the People's Republic of China[1], Article 33.
  2. ^ a b "该不该给"双重国籍"松绑". www.people.com.cn. Retrieved 6 August 2015. 
  3. ^ [2]
  4. ^ "新生儿申请领取因私普通护照". Embassy of PRC in Japan. Retrieved 6 August 2015. 
  5. ^ "China’s Middle Class Chafes Against Maze of Red Tape". The New York Times. Retrieved 24 May 2015. 
  6. ^ a b c d e f g "Nationality Law of the People's Republic of China". Immigration Department, The Government of the Hong Kong Special Administrative Region. 
  7. ^ See the regulations as quoted e.g. here: 外国人加入中国籍,其居民身份证或护照上的民族一栏应填写什么?
  8. ^ 第五次人口普查数据(2000年). 表1—6. 省、自治区、直辖市分性别、民族的人口 ( Fifth National Population Census of the People's Republic of China (2000). Table 1-6: Population of provinces, autonomous regions, and minicipalities by ethnicity. (Chinese)
  9. ^ Carney, John (2012-12-16). "Figures reveal thousands from ethnic minorities have won naturalisation". South China Morning Post. Retrieved 2012-12-19. 
  10. ^ For a list of documentary requirements for renunciation, see http://lawandborder.com/renunciation-chinese-nationality/.
  11. ^ http://nomadcapitalist.com/2014/04/25/countries-allow-dual-citizenship/
  12. ^ "Explanations of some questions by the Standing Committee of the National People's Congress concerning the implementation of the Nationality Law of the People's Republic of China in the Hong Kong Special Administrative Region". Immigration Department, The Government of the Hong Kong Special Administrative Region. 
  13. ^ a b "Applications for naturalisation as Chinese nationals". Info.gov.hk. 2005-05-18. Retrieved 2011-05-28. 
  14. ^ a b c d McKenzie, Hamish (2010-04-14), "Expat or immigrant", TimeOut Hong Kong, retrieved 2011-12-05 
  15. ^ a b c d "本港去年729人入中國籍", Ming Pao, 2011-01-12, retrieved 2011-12-06 
  16. ^ Schloss, Glenn (1998-08-31). "Indonesians behind bulk of applications for citizenship in Hong Kong". South China Morning Post. 
  17. ^ Shamdasani, Ravina (2002-12-02). "HK-born to Indian parents, but Vekha is now Chinese; Nationality and a passport granted to girl in the first case of its kind". South China Morning Post. Retrieved 2011-05-28. 
  18. ^ Shamdasani, Ravina (2002-12-15). "First Hong Kong Pakistani gets Chinese nationality". South China Morning Post. Retrieved 2011-05-28. 
  19. ^ "中华人民共和国户口登记条例". National People's Congress. 2000-12-10. Retrieved 2015-06-13. 
  20. ^ "像影子一样活:超生"黑户"的18岁人生". Southern Weekly. 2011-06-17. Retrieved 2015-06-13. 
  21. ^ "臺灣地區無戶籍國民強制出國處理辦法", Laws & Regulations Database of The Republic of China, Taipei: Ministry of Justice, 2008-07-08, retrieved 2011-12-21