China's new Immigration Law explained
July 17, 2012 | BY
clpstaff &clp articles &After ten years, the NPC has finally passed an Immigration Law providing a unified platform for managing immigration. China Law & Practice spoke with two leading employment lawyers to determine how the Law will affect immigration policies
The PRC Immigration Administration Law (中华人民共和国出境入境管理法) was passed during the 27th Session of the Standing Committee of the 11th National People's Congress earlier this month. After ten years of internal debate, the Law passed through the legislative process of three deliberations (December 2011, April 2012 and June 2012) before being passed.
When the Law becomes effective, it will combine and repeal the Law for Foreigners (中华人民共和国外国人入境出境管理法) and the Law for Citizens (中华人民共和国公民出境入境管理法) making it the first major reform to China's immigration laws since 1986.
“Combing two separate laws into one is not a surprise. This has happened before with the Contract Law and it shows the country is more open and more international than before,” said Linda Liang, a labour and employment lawyer with King & Wood Mallesons in Beijing.
The increase in economic growth and globalisation has highlighted the need for a consistent and comprehensive Immigration Law. But passing the Law was time consuming. “Enacting a law is not like enacting local rules. Much more research, discussion and coordination is needed,” said Isabelle Wan, head of TransAsia Lawyers' labour and employment department.
Key articles
Employers will be fined Rmb10,000 ($1,570) for every foreigner they illegally employ up to a maximum fine of Rmb100,000 ($15,700) per employee. In addition, any monetary gains from illegal employment will be confiscated (Article 80).
The Law also empowers authorities to detain foreigners for investigation if suspected of illegally working in China (Articles 59 and 60). It also, for the first time, clearly outlines what constitutes illegal employment.
“The new Law is clearer and more detailed than previous regulations. Previously, it only said if you have a foreigner working illegally, the employer may be asked to stop employment and may be penalised. It is clear China wants to better administrate foreigners staying and working in China,” said Liang.
Employees are also subject fines for illegal work ranging from Rmb5000 to Rmb20,000 ($785 to $3140) and possible detention from five to 15 days (Article 80). Deportation is also possible under Article 62 with a ban from re-entering China from one to five years.
“Ensuring foreigners possess work and residence permits was previously a clear requirement, but this is the first time it has been addressed in a law promulgated by the Standing Committee of the NPC,” said Wan. Ministerial rules and policies regulated this before and the new Law shows the government's serious stance towards immigration.
Have you got talent?
A new talented visa category also appears in the Law. First proposed during the second draft in April, it creates new opportunities for foreigners. The visa is strictly for foreigners with particular talents and the details will be determined by future legislation.
Speaking to China Law & Practice in April, Lesli Ligorner, a partner at Simmons & Simmons in Shanghai who specialises in China employment, said it can be difficult to get approval, for example, for talented foreigners who have already surpassed China's retirement age of 55 for women and 60 for men, and the new process may make this easier.
The visa is also about bringing “specific talent in specific industries to China, it is not for entry level employees as the government wants more experienced and talented foreigners,” added Ligorner.
Categorising people
China's Foreign Investment Industrial Guidance Catalogue (外商投资产业指导目录) is the ultimate guide defining which industries are encouraged, prohibited or restricted. Article 42 of the Law proposes a similar model for employment in which encouraged categories will be defined.
Encouraged categories are likely to include “highly skilled positions for which there is a current shortage in China,” said Wan. The Beijing Personnel Bureau has published a list covering four key categories: advanced technology and modern manufacturing; cultural and creative industries; finance; and modern agriculture.
“We will have to wait and see how in practice the authorities will handle this guidance, but hopefully it will just refer to some industries not detailed positions,” noted Liang. Listing specific positions could make it harder to hire employees, but it all depends on how flexible the guidance will be.
Enforcement
As with all of China's laws, the extent of enforcement will be the key. “The new Law is fairly well defined and we would anticipate a relatively swift and focused implementation once the Law comes into effect,” said Wan.
The Law does not become effective until July 1 2013. A gap between promulgation and effectiveness is common for Chinese legislation. This somewhat extended period gives employers and employees time to become aware of the new requirements. It also allows local governments to adjust and amend existing rules.
A full text translation and a feature article analysing the new Law will be available in the next issue of China Law & Practice.
By David Tring
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