16.03.2006 - Source: BBC News

Refusal by authorities of taking back almost 40,000 immigrants to the US who have been denied permission to stay in the country, according to US Homeland Security Secretary Chertoff ("US says China refuses deportees") [#46696],  [ID 17160]

Document(s): Open document

04.2005 - Source: UK Home Office

Country Report April 2005 - Returnees ("Country Report - April 2005") [#31975],  [ID 4506]

"6.248 Article 322 of the Criminal Law covers the penalties for illegal emigration. It states:

“Whoever violates the laws and regulations controlling secret crossing of the national boundary (border), and when the circumstances are serious, shall be sentenced to not more than one year of fixed-term imprisonment and criminal detention or control.” [5bg] (p 100)

6.249 Articles 52 and 53 cover financial penalties for returnees. These state:

“Article 52. In imposing a fine, the amount of the fine shall be determined according to the circumstances of the crime.

Article 53. A fine is to be paid in a lump sum or in installments [sic] within the period specified in the judgment [sic].

Upon the expiration of the period, one who has not paid is to be compelled to pay. Where the person sentenced is unable to pay the fine in full, the people’s court may collect whenever he is found in possession of executable property.

If a person truly has difficulties in paying because he has suffered irresistible calamity, consideration may be given according to the circumstances to granting him a reduction or exemption.” [5bg] (p 14)

6.250 As reported by the official news agency Xinhua on 20 July 2004, approximately 1,000 delegates attended the seventh Congress of returned overseas Chinese, which began in Beijing on the same day. [13j]

6.251 On 18 November 2004, the official news agency Xinhua reported, “In 2003, about 26,000 Chinese people illegally entering other countries were repatriated, with a further 12,000 being sent back to China in the first half of this year.” [13o]

6.252 According to the US State Department Report on Human Rights (Taiwan) 2004 (USSD Report Taiwan 2004), published on 28 February 2005:

“While the [Taiwanese] authorities were reluctant to return to the mainland those who might suffer political persecution, they regularly deported to the mainland, under provisions of the MRA, mainlanders who illegally entered the island for what are assumed to be economic reasons.” [2f] (Section 2 d.)

6.253 As reported by Taiwan News on 19 June 2004:

“The MAC [Mainland Affairs Council] spokesman suggested that Taiwan could rent some boats for use in repatriating illegal PRC immigrants if the Beijing government continues to refuse to send its own vessels to pick up its own citizens. Taiwan usually repatriates illegal immigrants to China twice a month from Matsu [Island] for picking up by PRC boats, but the last time China sent boats to pick up the immigrants was March 12 [2004].” [15b]

6.254 According to a report by the Canadian IRB dated 9 August 2000,“Leaving China without exit permission or a passport is a criminal offence in China punishable of [sic] up to one year in prison. Only repeat offenders would get a sentence approaching the maximum. Most first time offenders would get a short sentence, depending on the circumstances of their case but probably with sentences of 3 months.” [3b] (Based on information supplied by a Program Analyst with Citizenship and Immigration Canada – CIC and related to the repatriation of 90 Chinese illegal emigrants from Canada to Fuzhou in May 2000)

6.255 The same source continued:

“The detention centre [in Fuzhou] is a rectangular, four story building with a large enclosed courtyard. It can accommodate a maximum of 100 detainees. The cells are all around the building with recreation facilities such as a ping pong table in the courtyard. On the first floor, there are several rooms for questioning deportees. Those rooms are fairly small with a plexiglass divider separating the detainee and the interviewer. We recognized one of the deportees of the previous day being questioned as we walked by. Each cell can accommodate up to 10-12 people. The cells are large rectangular rooms with an elevated floor on each side where mattresses are set at night and rolled up during the day. Each cell has it's own bathroom, television, and window. From what we could see most of the inmates were sleeping, watching television or playing cards. A larger room is used as a cafeteria and “re-education” room. The whole detention centre is very clean and the living conditions did not appear to be particularly harsh, almost comparable to the equivalent in Canada.” (Based on information supplied by a Program Analyst with Citizenship and Immigration Canada – CIC and related to the repatriation of 90 Chinese illegal emigrants from Canada to Fuzhou in May 2000). [3b]
6.256 The above information was still held to be current by the IRB on the 3 April 2003. [3u]

6.257 According to a report by the CEME (Cooperative Efforts to Manage Emigration), which brought together the findings of weeklong visit to Fujian undertaken in June 2004:

“The team visited the main Fujian detention centre just outside Fuzhou, which can accommodate up to 300 persons - both foreigners caught entering the country illegally and Chinese returning from illegal migration activities abroad. Managed by the Border Defense Force, the centre is intended to detain persons returned and those awaiting the outcome of administrative investigation for up to 15 days. It offers information, awareness raising through newspapers, TV and discussions, recreation, medical attention and individualized “ideological education”. The team was told that detainees are allowed 1-3 hours “free activity” every day, and that their dietary needs are taken into account.

The centre has on a number of occasions been presented as a model to immigration officials (including Ministers) from Australia, Canada and the US. It appeared clean, well kept and managed; but was unoccupied at the time of the CEME visit (indeed seemed only to have housed some 200 occupants in the year). It offers excellently presented displays of its history, including distinguished visits from other countries, and a rousing documentary video of its purpose, history and operation.

The team found the centre to be a conspicuous demonstration by the government to the world of how heavily it is investing in combating irregular forms of migration. However, given that the centre was unoccupied, the team speculated about how much it was actually used for the purposes and to the extent claimed.” [20k] (p 9)

6.258 According to the USSD Report 2004, “Persons who were trafficked from the country and then repatriated sometimes faced fines for illegal immigration upon their return; after a second repatriation, such persons could be sentenced to reeducation through labor. Alien smugglers were fined $6,000 (RMB 49,600), and most were sentenced to up to 3 years in prison; some have been sentenced to death.” [2j] (Section 5)

6.259 According to the CEME report (see above) “Persons convicted of organizing smuggling or trafficking can be fined or, if convicted, sentenced to 2, 5, 10 years or life imprisonment.” [20k] (p 7)

6.260 According to a report in The Economist dated 15 May 2004, “Somebody caught trying to sneak out of the country illegally is likely to be fined 10,000 yuan ($1,200) and detained for a couple of weeks if caught.” [20s]

Returning to China After Having Children Abroad

6.261 As reported by the US Citizenship and Immigration Service on 1 January 2004:

“Relatively little information is available to the Resource Information Center (RIC) within time constraints on the treatment of rural Chinese women who return to China with children born outside the country. For this reason, it is unclear whether the fact that the children are U.S. citizens makes any difference.” [5c]

6.262 This report also stated:

“A China specialist at the U.S. State Department told the RIC that his office presently had little information on the treatment of returning Chinese who had children while abroad. The specialist added that actual implementation of China's population control policy varies considerably throughout the country, and that some people in southern Fujian and Guangdong provinces had reported no problems in returning after having children abroad (U.S. DOS/DRL 20 Jan 2004).” [5c]

6.263 As reported by the official People’s Daily newspaper on 8 August 2003, “Parent’s can choose to register their newborns in either the mother or father’s place of residence…” [12h]"

Document(s): Open document

04.2005 - Source: UK Home Office

Country Report April 2005 - Double Jeopardy ("Country Report - April 2005") [#31975],  [ID 4507]

"6.264 Article 7 of the Criminal Law covers the penalty for crimes committed outside the PRC. It states:
“Article 7. This law is applicable to PRC citizens who commit the crimes specified in this law outside the territory of the PRC; but those who commit the crimes, provided that this law stipulates a minimum sentence of less than a three-year fixed-term imprisonment for such crimes, may not be dealt with.” [5bg] (p 5)

6.265 Article 10 states:
"Any person who commits a crime outside the territory and territorial waters and space of the People's Republic of China, for which according to the law he should bear criminal responsibility, may still be investigated for criminal responsibly according to this Law, even if she or he has already been tried in a foreign country. However if he has already received criminal punishment in the foreign country he may be exempted from punishment or given mitigated punishment.” [5bg] (p 6)"

Document(s): Open document

10.2003 - Source: UK Home Office

Returns ("Country Report - October 2003") [#49232],  [ID 4508]

"6.A.323. The Chinese Government accepts the repatriation of citizens who have entered other countries or territories illegally. Returnees generally are fined. Those who have been repatriated a second time typically are sent to labour camp in addition to being fined again. Those who are identified as people smugglers are liable to criminal prosecution.[2a]

6.A.324. In January 2000, the Political Counsellor of the Canadian Embassy visited Fuzhou city in Fujian Province on a fact finding mission, to ascertain conditions of returnees, and allied general conditions of life in Fujian Province. All meetings were conducted in Mandarin. The Canadian Embassy's requests for access were fully granted, and the Political Counsellor was permitted one-to-one unsupervised meetings with villagers and returnees. [3r]

6.A.325. The main conclusion of the Political Counsellor's fact-finding report with regards to returning is:-

"There is evidence of wilful deception of foreign governments as to sanctions against returned illegal migrants. Much touted policies of prison sentences and extensive re-education programs are apparently mostly not implemented. Rather we have become aware of preferential economic policies and business loans made available to returnees by local governments. We are assured that children under 16 returned to China would not be subject to incarceration under any circumstances." [3r]

6.A.326. On the methodology of the Dr Charles Burton report, Heaven is high, and the emperor far away, (June 2000 - [3r]) Dr Burton has stated that he was not limited in any way as to who he was allowed to meet or where allowed to go, both in relation to rural villagers and returnees. He has native fluency in the Chinese language, and no trouble in communicating in the rural parts of Fujian visited. [3ap]

Returnees

6.A.327. The returnees referred to in the above report were returned from Japan and the US; Japanese returnees were interviewed. However, no actual detainees were interviewed as all had been, purportedly, speedily processed and returned to their homes on return. [3r]

6.A.328. The Canadian IRB issued an update on treatment of returnees in August 2000, following on from the Burton report of May 2000 ([3r]) [3ao]. A program analyst from Citizenship and Immigration, Canada, followed the 90 returnees deported from Canada in May 2000 [3ao][18l].

6.A.329. The CIC was told that minors are processed quickly and released into the custody of their families within a day of their arrival [3ao]. The prosecution and judging of cases is undertaken by the Procuratorate (jiancha jiguan). Detention is normal until the trial is over (previously given [in 3r] as being typically ten to twelve days.) [3ao]

6.A.330. One academic expert has added further details about returnee's treatment in Fujian province. Dr. Ko-lin Chen states that returnees are usually taken to the Border Patrol Education Camp, and questioned on how they were smuggled out of the country. Most are then fined between 10,000 and 20,000 Yuan [£700 - £1400] (but see below). Those who pay the fine are released immediately; non-payers are sent for "re-education through labour" for up to 1 year at the prison complex outside Mawei city, just outside Fuzhou city, Fujian. [3ao]

6.A.331. There is however a range of opinion on penalties. One report is that first offenders, of leaving without an exit permit and a Chinese passport, are typically given an administrative sentence of three months. [3ao] Most agree on around the 5000 Yuan mark [£350] for the first offence, with one expert saying such fines are rarely imposed in practice anyway, with another expert saying that usually 2 days' detention is imposed instead and added that the fine for a second offence as between 200 and 500 Yuan [£15 - £40]. [3ao]

6.A.332. On the question of threat from organised crime elements that may have funded emigrants' journeys, the experts consulted were of the opinion that there was no threat, with one expert adding that the snakeheads would be more likely to encourage returnees to try again as a business ploy. [3ao] (See above, Development of trust)

6.A.333. On the long-term repercussions for returnees the same group of experts were in agreement in the main that there were no long term repercussions (one expert had no evidence on the matter). There are no reports that returnees are treated differently depending on where they are returned to (e.g. Beijing or Fuzhou). [3ao]

6.A.334. The experts gave further information about different countries' return procedures and limitations on follow-up of returnees; they had no substantial information about minors and media coverage of returns. [3ao]

6.A.335. The Canadian Government in December 2001 was faced with a claim by a group of ten applicants, all minors, that Canada could not return them to PRC on the grounds that their anonymity had been compromised through surrounding media attention. [4up] Media and legal experts were concerned that free and fair reporting of such cases would be thus disallowed. [4up] In the initial case, a federal court in Montreal ruled that the group had to prove that the media attention had brought them to the attention of the PRC mainland authorities, but did grant appeal rights. [4up]

6.A.336. Background information to questions about minors and young adult returnees was posted on the Canadian IRB website, dated 22 March 2002. [3br] It considered the question of whether young adults, pressured to go abroad by their families, could go to other parts of PRC. It explained that within the context of the migratory culture outlined above (see above, Motivations) protestations have little basis in terms of a genuine fear of harm, and suggest that any possible social ridicule should not be a barrier to return. [3br]

6.A.337. The US held talks on 3 July 2000 with Beijing regarding the quicker return of intercepted Chinese migrants. [18k] The first batch of the 1999 sea-container illegal emigrants were flown from the US to Fuzhou city, Fujian Province on 8 January 2000. 246 individuals were returned. [4fn] Acceptance rate in US asylum cases by Chinese claimants is currently running at 13 percent in 1999 / 2000. [18k]

6.A.338. Past mass returns have included 101 returnees by the Australian authorities on 18 August 1999. [15j]

6.A.339. On 29 April 2000, Elinor Caplan visited Hong Kong to talk to port authorities about people-smuggling. Most of the container ships had sailed from Hong Kong, and the latest cases alarmed the Hong Kong SAR authorities to consider the matter. [4gn] Choy Ping-tai, the Deputy Director of Immigration in Hong Kong, said he wished to bring in the same level of control operating at the airport. [4fj] She called on mainland PRC to speed up documenting people for return to PRC, otherwise "the snakeheads will win, and that's unacceptable", which is still the message of the governments of all receiving countries. [4gn]"

Document(s): Open document

10.2003 - Source: UK Home Office

Country Assessment - October 2003 - Returning ("Country Report - October 2003") [#49232],  [ID 4509]

"Chinese Government responses

6.A.307. The act of exiting mainland China without permission is an offence. However, if this is the only unlawful act committed by the emigrant, then they are punished under Article 14 of the Law of the People's Republic of China on the Exit and Entry of Citizens (1981). They thus "may be given a warning or placed in detention for not more than ten days by a public security organ". [3l]

6.A.308. However an overlapping article, Article 322 (formerly Article 176) of the Criminal Procedure Law can be invoked for the same offence, and fines levied under Articles 52 and 53 of the same code. Fines are levied by local authorities and can vary. [3l] Legally, the standard fine should be between 1,000 and 5,000 yuan (Ł75 - Ł350) In 1993, one expert (Dr Chin) found fines to vary according to locality (eg. Changle City - 25,000 yuan (Ł1860) to Ping Tan - 6,000 yuan (Ł425)). Fines also varied on where the returnee had been returned from (eg. from Taiwan, the fine was between 5,000 - 8,000 yuan (Ł350 - Ł575) with Japan and the US commanding higher rates.) [3l]

6.A.309. One expert noted that the Chinese Government does not generally mistreat returnees, unless the person has been deported to China more than once. [3l] If a returnee is held to be involved as a snakehead, then they are charged under the Criminal Code and subject to the Criminal Procedure Law."

Document(s): Open document