China's Refusal of Passports to Certain Minorities, Children without Hukous, and Others Impinges on Their Right to Leave and Return

For more than a decade, most Chinese have become increasingly accustomed to a hassle-free passport application process. But the right to leave and return (RLR) is still limited for certain minorities (including Tibetans and Uighurs), children without hukous, and dissidents. Denying passports to these groups only further marginalizes them and increases tensions by depriving them of opportunities for overseas education, connections, and jobs.

RLR under International Law

The RLR dates back at least to England’s Magna Carta (article 42), if not earlier. In modern times, the RLR is rooted in the Universal Declaration of Human Rights, which proclaims: “Everyone has the right to leave any country, including his own, and to return to his country.” Article 13(2). Likewise, the International Covenant on Civil and Political Rights states that “Everyone shall be free to leave any country, including his own” and that “No one shall be arbitrarily deprived of the right to enter his own country.” (Article 12).

There are, of course, recognized exceptions on the RLR for certain persons convicted of crimes, material witnesses, in cases of health quarantines, and in cases of child custody disputes. But China’s denial of passports to certain groups does not fall comfortably within these exceptions.

Easier Passports for Most Chinese Over the Last Decade

In his 2005 book, The Right to Leave and Return and Chinese Migration Law, Professor Liu Guofu argued that China (along with Vietnam and North Korea) was one of the few countries worldwide that exercised restrictive policies in relation to the RLR of its nationals. But, he points out, reforms had already begun in 2001 in order to facilitate China’s economic and social development. China slowly rolled out a “passport on demand” policy, allowing applicants to apply merely by presenting their identity cards and hukous. For most, it was no longer necessary to provide written permission from one’s work unit or an invitation letter from abroad. In the parts of China with the fast-track system, a passport application only requires approval from one office—the local branch of the Exit and Entry Administration under the Ministry of Public Security—and these offices are required either to issue a passport to any citizen within 15 days of an application or to explain the delay.

Minorities

Recently, Uighurs and Tibetans, who together number about 16 million inside China, have increasingly complained about difficulties obtaining passports, including the need for government approvals that members of the majority Han group aren’t subject to.

Amnesty International reports that for ethnic minorities in Tibet and Xinjiang a slow-track passport application system imposes a political examination on applicants and appears to be designed to prevent Tibetan Buddhist or Muslim religious pilgrimages on the assumption that pilgrims may be drawn into political activism. The slow track can take several years.

In fact, according to the Amnesty report, since 2012 the Tibetan Autonomous Region authorities have ordered the confiscation of all ordinary passports held by registered residents of the region, over 90 percent of whom are Tibetans, and appear to have issued no replacements for them.

Also, it’s recently been reported by the New York Times and AP that in an attempt to combat ethnic violence, police have ordered residents of Ili Kazakh Autonomous Prefecture prefecture in Xinjiang to hand over their passports to the police or have the documents canceled. According to these reports, passport holders would be required to reapply and submit documents stating their reason for traveling and ensuring their good reputations if they wished to get them back.

Uighurs in Xinjiang have had a hard time getting passports for many years, but the prefecture-wide collection of passports seems to be new. Ili is ethnically diverse and borders on Kazakhstan, Mongolia and Russia. Nicholas Bequelin of Amnesty International interprets the government policy as an attempt to deny Uighur separatists support from abroad, but he fears that the policy will “reinforc[e] the sentiment of alienation of ethnic Uighurs, and fuel[ ] the feeling of being second-class citizens, suspect in eyes of the state simply because of their ethnicity.”

Children without Hukous

Some children born in violation of family planning laws (超生子女) also have problems getting listed in the hukou (户口 or household registration) of one of their parents, which is a prerequisite to apply for a passport.

To apply to the public security bureau for a hukou, the documents which in practice must be provided are the child’s 出生医学证明 (medical birth certificate) issued by the public health department and a 生育证 (birth permit) issued by the population and family planning department.

In some localities, an out-of-plan child may be denied a birth permit or a hukou until the parents pay a fine for noncompliance with family planning laws, termed “social maintenance fees” (社会抚养费). Those fines are sometimes steep. For example, a Beijing mother who gave birth to a second child out of wedlock was told that she would need to pay a fine of over $50,000, although she earns just $300 a month, according to The Diplomat.

As a pure legal matter, parents who haven’t complied with family planning laws apparently still have a right to obtain a hukou for their child. However, some lawsuits seeking to enforce this right have been dismissed.

Nationwide, some 13 million children were unable to get a hukou, according to the 2010 census. Children with no hukou are sometimes referred to as 黑孩子 (black children). The discrimination they face is serious enoughtthat in one case, the U.S. Federal Court of Appeals for the Seventh Circuit remanded an asylum claim to the Board of Immigration Appeals to consider the assertion that the discrimination experienced by a so-called black child amounted to persecution. Chen v. Holder, 604 F.3d 324 (7^th Cir. 2009).

“Luck, connections and money” are important for out-of-plan children to get a hukou,” according to The Diplomat.

Dissidents

The Chinese government has long denied passports to dissidents who might embarrass the party overseas.

Tibetan writer and rights activist Woeser Tsering told the AP that she’s consistently been refused a passport since first applying in 1997. During her most recent attempt in 2012, a police officer told her she’d been placed on a list of people banned from leaving the country by the Ministry of State Security, she said.

Cheng Fan, a veteran of the 1989 student-led pro-democracy movement, has never been able to obtain a passport, according to the AP. His applications are denied with a notice that a “relevant Cabinet agency” has ruled that if allowed to travel abroad, he would “pose a threat to national security or cause serious harm to national interests.”

Others denied the right to travel include Uighur scholar Ilham Tohti and artist Ai Weiwei, whose passport has been confiscated since a 2011 detention.

Conclusion

The Chinese government should respect the internationally recognized RLR. Denying passports to minorities, children without hukous, and dissidents further marginalizes them and actually garners them more international support because of the clear legal violation. The better policy would be to facilitate passport issuance to them, thereby giving them the same opportunities as other Chinese for overseas education, jobs, and connections, and allowing them to share in the benefits of China’s reform and opening up.