Combating the “Three Illegals”

The 2012 law is the first comprehensive legal framework for regulating foreigners’ visas, residence, and rights in China. The overall thrust is to combat illegal entry, residence, or work in China—the so-called “three illegals” (san fei).

The law raised the penalties for all immigration offenses. The fine for overstaying a visa, previously RMB 5,000 (USD $800), was doubled to RMB 10,000. The stipulated detention time for the same offense, to be served instead of paying the fine, increased from three to ten days to five to 15 days, and up to 60 days “if the case is complicated.” An order to leave China can be given along with the fine or detention.

The treatment of immigrants in practice, however, does not always conform to these stipulations. Both before and after the law’s passage, unauthorized migrants unable to pay for their own repatriation were detained for months and even years. In Guangdong province, a main destination for foreigners in China, the typical experience in 2014 for unauthorized African immigrants who could pay for their own repatriation was three months’ incarceration. Immigrants have interpreted the practice as an informal way to add to the punishment for overstaying.

The 2012 Exit-Entry Law also targets those assisting unauthorized migrants. A RMB 5,000 fine may be levied on individuals providing fake documentation or qualifications to ineligible foreigners. Employers of unauthorized migrants can be charged RMB 10,000, while the fine for those working illegally is RMB 20,000 (USD $3,200). Under Article 45, anyone who becomes aware of foreigners who have entered, reside, or are employed illegally in China should notify the local public security bureau. Some local governments have gone further in providing incentives to citizens for fighting the “three illegals.” In Guangdong, provincial provisions stipulate that informers can be rewarded.

Some of the tools used to control foreigners were initially designed to manage China’s own population, such as the household registration system (hukou). Foreigners must register their rented housing at the local police station within 24 hours of arrival. The local authorities thus have information about where foreigners live and when their visas expire. This is used to enforce immigration legislation. The 2012 law imposes a RMB 2,000 (USD $320) penalty on those who fail to register their rental housing. Housing can only be registered with the consent of the landlord, who may retract this approval if, for example, the tenant owes rent. The government deliberately manipulates the residential pattern of immigrants by declining to register housing for foreigners in certain areas.

The Chinese decision to task employers, landlords, and the general public with monitoring the immigration status of foreigners represents a de facto decentralization of immigration law enforcement. It resembles attempted initiatives taken elsewhere in the world—such as state-level legislation in Arizona, United States, ultimately struck down by the U.S. Supreme Court—to penalize people who shelter, employ, and assist unauthorized migrants.