The Standing Committee of China’s National People’s Congress enacted into law new refugee provisions as part of the Exit-Entry Administration Law on June 30, 2012.
China’s new law states:
Article 45. An alien who applies for status as a refugee may stay in China with a temporary identity certificate issued by a public security organ during the screening of his or her application. An alien who is determined to be a refugee may stay and reside in China with a refugee identity certificate issued by a public security organ.
Under the new provision, persons may apply for refugee status and remain in the country while being screened. It adds meat to the existing regulatory framework:
- Article 32, which provides that China “may grant asylum to foreigners who request it for political reasons.”
- China’s obligations under the 1951 Refugee Convention and 1967 Protocol Relating to the Status of Refugees.
- China’s 1985 law, which merely stated the tautology that persons approved for asylum by the Chinese government may reside in China. Under that law, there was no right to apply for asylum or to protection while awaiting the government’s decision. Nor were any implementing regulations put in place.
A refugee is legally defined by the Refugee Convention as a person who has fled his or her country because of actual persecution or “owing to well-founded fear of being persecuted” is unwilling to return to his or her country. The actual or threatened persecution must be on the because of an enumerated ground–race, religion, nationality, membership of a particular social group or political opinion.”
Parties to the Convention have an obligation to abide by the principle of “non-refoulement,” which means that “No contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened.
A country that has signed the treaty is supposed to make individual determinations regarding whether a person unwilling to return to his or her country is a refugee and is supposed to give the United Nations High Commissioner for Refugees (UNHCR) access to the asylum-seekers.
As a practical matter, it remains to be seen how China will implement its new law. There are over 300,000 refugees in China. Most are from Vietnam, Myanmar, and North Korea. But to date China has no procedure in place for determining refugee status. China has refused to allow the UN Refugee Agency (UNHCR) and international aid organizations access to persons seeking refuge in China.
UNHCR repeated this charge as recently as last week in connection with Kachin asylum seekers from Myanmar (Burma) seeking refuge in China. Human Rights Watch reports some have been illegally repatriated by the Chinese government.
Kachin Independence Army (KIA) soldiers have been fighting against Burmese government troops across the border in Kachin State since a 17-year-old ceasefire collapsed between the two sides in June 2011. Some 10,000 Burmese are in China’s Yunnan Province in refugee camps or other settlements.
China Daily reports that, under the new law, the Ministries of Public Security and Civil Affairs may play a role in screening and providing services to asylum seekers.
China’s government sees refugees, such as from North Korea, as a potential threat to regional stability. And Beijing fears that granting refugee status to citizens of friendly neighboring governments would be considered an insult to those governments.