Refugee Review Tribunal AUSTRALIA

RRT RESEARCH RESPONSE

Research Response Number: CHN31644 Country: Date: 24 April 2007

Keywords: China – Family registration – Illegitimate children – Children born overseas

This response was prepared by the Country Research Section of the Refugee Review Tribunal (RRT) after researching publicly accessible information currently available to the RRT within time constraints. This response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.

Questions

1. Is a child born in Australia to Chinese parents able to get a Chinese and registration in China? How difficult is this registration? 2. The father of the child was born in Fujian Province and the mother in Guangdong. Are there different categories or requirements for registration in these provinces? 3. Is there prejudice in China to children born out of wedlock? 4. How are children with the above issues who are born outside China, treated if they and their families return to China? 5. Is there a bureaucratic way that the Chinese authorities deal with these problems? Is it sufficient to pay a fine?

RESPONSE

1. Is a child born in Australia to Chinese parents able to get a and registration in China? How difficult is this registration?

Chinese

The sources consulted indicate that a child born overseas to Chinese nationals is considered to be a Chinese national.

Article 5 of the Chinese states:

Any person born abroad whose parents are both Chinese nationals and one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality (‘Nationality Law of the People’s Republic of China’ (Promulgated and Effective 10 September 1980) China.org website, 10 September, http://www.china.org.cn/english/livinginchina/184710.htm# – Accessed 3 April 2007– Attachment 1).

The available information does not specifically discuss the nationality of illegitimate children born overseas to Chinese nationals.

Registration of children born overseas

There are a number of reports that discuss the situation of “out of plan” children born overseas to Chinese nationals. The reports contain diverse views, but most indicate that extra children, especially from educated middle-class families, students and professionals, would not experience particular difficulties on returning to China. Reports vary on the procedures for registering the children in the province they return to and on the subject of whether fees would have to be paid for access to services, and on the amount payable.

According to an IRB report, a university anthropologist who has researched the subject of family planning in China told the US and Immigration Services that “[i]n general, people who return to China from abroad are actively welcomed back to the ‘motherland’, and children born outside China largely forgiven” (Immigration and Refugee Board of Canada 2005, CHN100385.E – China: Penalties faced by couples returning from overseas who are in violation of family planning regulations (2001 – 2005), 25 August – Attachment 2;

A 2001 report on family planning in China, prepared for the US Department of Justice Immigration and Service, states that while residing or travelling abroad, Chinese living overseas are largely exempt from domestic birth planning rules:

The question frequently arises whether Chinese couples who have an unauthorized child while residing abroad are likely to face penalties upon returning to China. The evidence available suggests that, in many if not most cases, the answer is no. The relevant regulations do not call for penalties. Interviews with officials from Fujian and Guangdong produced the following account. If the woman became pregnant before leaving the country, the couple must pay the out-of-plan birth fine. However, if the woman became pregnant while abroad for ordinary reasons, the couple is not fined. Because the government wants to encourage students studying abroad to return to China, generally speaking there is no fine or other punishment for extra births that occur while they are abroad. Both Fujian and Guangdong have many Chinese citizens going in and out of the country on ordinary business, particularly from Guangdong to and back. Officials said that trying to control the behavior of such travelers is neither feasible nor necessary. Permission to travel abroad requires some clear purpose, and it is relatively easy to identify someone trying to go abroad simply in order to have a child. (a term explained in Chapter Six under Regionalism) have particularly broad latitude. They can send their one child out of China to permanent residence abroad and bear another child to replace it. Officials said that work units do not have much interest in trying to control the behavior of their members while they are abroad (Greenhalgh, Susan & Winckler, Edwin 2001, Chinese State Birth Planning In The 1990s And Beyond [PS/CHN/01.001], September, US Department of Justice Immigration and Naturalization Service, p. 7 – Attachment 3).

The report explains later that the term “Overseas Chinese” is not a general term. It refers to a special category of Chinese who reside and do business in overseas countries such as South- East Asia, but maintain ties to relatives in (Greenhalgh, Susan & Winckler, Edwin 2001, Chinese State Birth Planning In The 1990s And Beyond [PS/CHN/01.001], September, US Department of Justice Immigration and Naturalization Service, p. 90 – Attachment 3). An October 2004 DFAT advice about family planning regulation in Guantou town (which is in Fujian) states that where one or both parents had travelled overseas for study, they were allowed to have two children. However, fees would be charged for the third and any subsequent children. According to the Fujian regulations for excess births generally, the fee for the first excess birth was “between two and three times the county or township per capita annual income; the fee for the second such birth is between four and six times the per capita annual income; and the third and any subsequent births will require payment of an additional (unspecified) fee”; in Lianjiang County of Fujian province, the annual per capita income varied between 3000 and 7000 RMB according to area. However, it was not clear whether the same figures would apply to families returning from overseas (Department of Foreign Affairs and Trade 2004, DFAT Report No. 327 – RRT Information Request: CHN17017, 7 October – Attachment 4).

An April 2004 DFAT advice contains more information on Fujian:

The Provincial regulations on Family Planning regard children born outside the province (including children born overseas) as not subject to Fujian family planning rules. That is to say they are not counted in assessing penalties for giving birth to more than one child. The problem is getting children born outside Fujian registered with the Fujian authorities. In general terms, such registration is necessary to access state schools in Fujian. Evidence suggests that the problem of registration of children can be overcome by payment of an extra fee of several hundred or thousand RMB. In addition, in Fujian now, there are many private schools and clinics which will enrol or treat unregistered children. Their fees are not excessive by Chinese standards. Registration, while preferable when seeking work, is no longer essential in Fujian as more than 15% of Fujian’s population are unregistered workers… …If the children were born overseas, the mother would not be expected to pay large fines for exceeding the birth quota. The registration of the children born overseas may entail an extra fee but this applies to all children born outside Fujian and the fee would not be excessive by current day Chinese standards (Department of Foreign Affairs and Trade 2004, DFAT Report 287 – RRT Information Request: CHN16609, 22 April – Attachment 5).

A further DFAT report from September 2004 does not discuss children born overseas, but is still relevant

…Furthermore, in present day China, particularly in provinces such as Fujian and Guangdong, sanctions relating to family planning can be avoided through payment of a fee to local authorities, parts of which may be both above and below the table. Such fees are generally not excessive by middle-class Chinese standards, though fees vary from locality to locality (Department of Foreign Affairs and Trade 2004, DFAT Report 317: RRT Information Request CHN16905, 2 September – Attachment 6).

A December 2005 European Country of Origin Information Seminar examined the Chinese one child policy among other issues. After outlining the difficulties experienced by “black children” [that is, unregistered children] generally, it goes on to state:

The consequences for asylum seekers repatriated to China who did not follow the One-Child- Policy, are different. Parents responsible for pregnancies or births without permission in China could face some of the difficulties mentioned above. But Chinese couples living abroad are not bound to the One-Child-Policy. Chinese citizens studying or working in foreign countries can return with more than one child without any serious problem (ACCORD, HHC & UNHCR 2006, ‘China’, 10th European Country of Origin Seminar, 1-2 December 2005, Budapest, 17 March, p.16 – Attachment 7).

A 2002 report by the US Citizenship and Immigration Services Resource Information Center examined the situation of workers and peasants returning to China with extra children (as opposed to students and professionals). The range of experts consulted had little information on this subject, but one China specialist at the US Census Bureau’s International Programs Centre considered that treatment in individual cases would depends on the person’s dependence on the state for jobs and basic services. Returnees who were not working in the state sector might be able to avoid problems with local bureaucrats until they try to access local services such as schooling for their children (United States Citizenship and Immigration Services Resource Information Center 2002, Response CHN02002.ZNY ‘China: Information on Treatment of Returning Peasants and Workers Who Violated the One-child Family Planning Policy While Abroad’, 12 June – http://uscis.gov/graphics/services/asylum/ric/documentation/CHN02002.htm – Accessed 1 October 2004 – Attachment 8).

For further information on the household registration of “out of plan” children, please see the following question.

2. The father of the child was born in Fujian Province and the mother in Guangdong. Are there different categories or requirements for registration in these provinces?

Birth registration and the household registration system in China

A 2005 issues paper by the Immigration and Refugee Board of Canada (IRB) examines the or household registration system of China in detail and looks at recent reforms. Of the system in general it states:

The Chinese household registration system (hukou), implemented in China in the 1950s to improve migration control and economic planning (Cheng 12-13 Dec. 2003, 1-2; Wu and Treiman Oct. 2002, 8-9; Zhang 2000), remains in effect today (EIU 23 Aug. 2004; Chan, Kam Wing 2004; Wang Jan. 2005, 52). Despite undergoing various stages of reform and relaxation since the late 1970s, various sources believe that the system is still contributing to the social divide between urban and rural residents (Wu and Treiman Oct. 2002, 6; HRIC 6 Nov. 2002; Cheng 12-13 Dec. 2003, 2, 3; Solinger 20 Oct. 2004; Wang Jan. 2005, 179).

Under the HRS, every Chinese household is issued one hukou booklet containing the names of every family member, and each individual must be registered at birth with the local hukou authorities (Wang Jan. 2005, 23; Wu and Treiman Oct. 2002, 6; Rogerson and Wu Nov. 2002; Anh Sept. 2003, 29). According to Fei-Ling Wang, “[o]ne citizen can have only one permanent hukou, at only one hukou zone” (Jan. 2005, 65). Each town and city issues its own hukou, which entitles only its registered residents to complete access to the social benefits associated with that particular hukou (Wu and Treiman Oct. 2002, 5; Young 2002, 6; Anh Sept. 2003, 29; EIU 23 Aug. 2004). A person’s hukou registration record usually includes residential address, religion and employment information (Rogerson and Wu Nov. 2002; HRIC 6 Nov. 2002, 9), as well as birth, death and migration details (ibid.). In some areas, “nationality, ‘native place’, educational level, class status … and military record [are] also recorded” (ibid.).

Administration of the household registration system and issuance of hukou documents are the exclusive responsibility of the Public Security Bureau (PSB)2 (Carrillo 8 Dec. 2004; Canadian Consulate General in Hong Kong 9 Dec. 2004; Wang 9 Jan. 2005). Until the 1978 reforms, the system strictly prohibited population movement (Chan, Kam Wing and Zhang 1999, 819; Fang July 2003; see also Wu and Treiman Oct. 2002, 5), and people could not change residence unless the changes were part of the State’s socio-economic plan (Anh Sept. 2003, 29; see also Wang Jan. 2005, 23). Today, the PSB’s authorization is still required in order to change one’s hukou, particularly from agricultural (rural) to non-agricultural (urban) (Fang July 2003; Wang Jan. 2005, 23; see also Wu and Treiman Oct. 2002, 5). Prior to 1998, an individual’s hukou status was inherited from the mother (HRIC 6 Nov. 2002, 9; Wang Jan. 2005, 23; Chan, Kam Wing and Zhang 1999, 822), and cases of spouses and family members separated by the different classifications in their hukou status were common3 (ibid., 827) (Immigration and Refugee Board of Canada 2005, China: Reforms of the Household Registration System (Hukou) (1998-2004), February, p.3 – Attachment 9).

The same issues paper makes it clear that regulations – and the benefits of registration – vary between provinces, and also between different area of the same province, depending partly on whether they are rural or urban:

The application of HRS reform policies promulgated at the national level varies widely among the different provinces and cities (Young 2002; Carrillo 8 Dec. 2004), making generalizations impossible (ibid.). According to Beatriz Carrillo, “liberalization” of the HRS is more likely in smaller urban areas, whereas the larger urban centres tightly manage their HRS (28 Jan. 2005; see also Chan, Kam Wing 2004). For example, in Beijing, Tianjin and Shanghai, having an urban registration remains essential to secure social security, welfare, education, accommodations and employment prospects (Carrillo 8 Dec. 2004).

Despite the regional variations, the qualifications required to obtain urban registration tend to be similar and often consist of having fixed residence and stable employment (usually one year on the job) in an urban area (Young 2002). According to Cai Fang, director of the Institute of Population and Labour Economics, Chinese Academy of Social Sciences (CASS), state regulations introduced in 2001 made the hukou reform more of a local government responsibility than a national government-based one (July 2003, 16). According to Kam Wing Chan, by the beginning of the twenty-first century, local governments had almost complete control over population management within their jurisdictions (2004, 10). Municipal governments in several large cities did not immediately implement the reform policies introduced by the national government in 1998, and their refusal to do so was tolerated by the national authorities (Fang July 2003, 17; see also Young 2002). The high fees associated with obtaining an urban hukou in large cities, such as Beijing, Shanghai, Guangzhou and Shenzhen, which are the most attractive to migrants, made access to these cities out of reach for most (Wang Jan. 2005, 188; HRIC 6 Nov. 2002, 17; China Labour Bulletin 26 Feb. 2002; see also Chan, Kam Wing 2004).

The reforms introduced by the national government in March 2001 covered “all towns and small cities in Anhui, Guangdong, Hebei, Jiangsu, Shandong, Sichuan, and Zhejiang provinces” (Young 2002; see also China Labour Bulletin 26 Feb. 2002 and People’s Daily 1 Nov. 2001). Although these reforms also extended to some parts of larger cities (the peripheries), including Beijing, Chongqing and Shanghai, these cities had placed “significant limits” on eligibility for urban registration (Young 2002; see also Morning Post 8 July 2003 and Fang July 2003, 19). Fuzhou, for example, the capital city of Fujian, relaxed its hukou system in 2002 by eliminating the rural/urban distinction among its local residents and doing away with quotas on the number of people allowed to enter the city (China 19 Mar. 2002). However, the city imposed “access conditions” for obtaining a hukou, consisting of “a lawful residence, occupation and source of income and so on” (ibid.). On 24 February 2003, reported on reforms taking place in Beijing, where a new policy would allow children of rural mothers born in Beijing after 1 January 2003 to be registered as urban residents. Reforms were also introduced which would allow rural students in the city’s higher vocational and specialized training schools to obtain Beijing (Xinhua 24 Feb. 2003).

Nevertheless, during 2003, several provinces and major cities began to speed up local hukou reforms (Cheng 12-13 Dec. 2003, 4, 6; see also 8 July 2003). Some sources are of the opinion that the reforms that took place in several provinces and cities across China during 2003 were prompted by the outcry resulting from the March 2003 death of Sun Zhigang, a 27-year old university graduate, in the custody of Guangzhou policemen, after he was arrested for not carrying identity documents (Cheng 12-13 Dec. 2003, 4; Wang Jan. 2005, 191; Carrillo 2002, 16; see also 10 June 2003). Beijing, for example, introduced further reforms in the summer of 2003, by issuing a new type of hukou registration called the Beijing Employment and Residence Permit, which would give its holders “rights to housing, education, investment, social and medical insurance and a driver’s licence” (South China Morning Post 8 July 2003). In order to be issued such a permit, however, a person must be a residing in Beijing, be employed, have a bachelor’s degree and two years of employment experience (ibid.). This, according to the South China Morning Post, means that only “a select few will qualify” (ibid.). (Immigration and Refugee Board of Canada 2005, China: Reforms of the Household Registration System (Hukou) (1998-2004), February, pp.6-7 – Attachment 9).

Liu Huawen wrote a 2004 paper for the Norwegian Centre for Human Rights on birth registration in China, noting that birth registration is a part of the household registration system. He states that illegitimate children have the right to be registered:

China has a comprehensive system for birth registration. According to PRC laws and regulations, the household head, relative, foster person or neighbour of the newborn infant should report to the relevant household registration organ within 1 month after the birth. The parents/guardians or relevant foster organ should apply for birth registration. Any child who dies after birth and before birth registration should be reported for complete birth registration and death registration simultaneously. Children born out of wedlock and children born in wedlock have equal rights to birth registration. Generally Chinese citizens are free to choose the place of birth registration, but it must be at either of the parents’ permanent resident household registered locations (Huawen, Liu 2004, The Child’s Right to Birth Registration – International and Chinese Perspectives, Norwegian Centre for Human Rights, pp.15-16 http://www.humanrights.uio.no/forskning/publ/rn/2004/0504.pdf – Accessed 4 December 2006 – Attachment 10).

In 2000 DFAT advised on fines paid before children born contrary to regulations can be registered:

…Couples having children outside the regulations are meant to pay fines before the children can be registered. These fines vary from place to place but appear to be substantial. There are conflicting reports about how effectively these fines are applied in practice. Officials have told us that rural families are unswayed by the fines, regarding them simply as one of the necessary costs of having a large family; others have said the fines are rarely applied, or are applied only in a token fashion (e.g. choosing to use the mother’s income as a basis for determining the level of the fine, because the mother has no permanent job, and thus a much lower income than the father) (DIMA Country Information Service 2000, Country Information Report No. 554/00 – China – Treatment of ‘Black Children’, (sourced from DFAT advice of 3 November 2000), 7 November – Attachment 11).

As cited in the most recent UK Home Office report, a January 2001 article states that officials may be “‘persuaded’” to add or issue a hukou for “children born contrary to the ‘one-child policy’”, however, a bribe is often required (UK Home Office 2006, Country of Origin Information Report: China, UK Home Office website, 29 September, para.31.18 http://www.homeoffice.gov.uk/rds/pdfs06/china_041006.doc – Accessed 1 November 2006 – Attachment 12).

Information provided in 2001 to the Canadian IRB by an associate professor of international studies and sociology specialising in Chinese demography and population at the University of Washington in Seattle states that even at a particular time when local authorities were directed by the central government to register previously unregistered children without penalty (for the purpose of compiling an accurate census) some charged fees:

The exclusion of out-of-plan children from household registers remains a tool of birth planning policy. It should not be assumed that because the (central) government directed that unregistered children be registered [prior to the 2001 census] that all such children in fact were registered. The government directed that such children be registered “ without penalty.” It is likely that some local governments (at the county level) nonetheless insisted that birth planning penalties be paid before permitting registration. Thus in some regions there could be a considerable gap between central government policy and local compliance. (Immigration and Refugee Board of Canada, 2001, Response CHN37661.E ‘ :China: Whether parents of “out-of-plan” children were permitted to register and obtain official documentation for them following the November 2000 census’, 21 August – IRB Website http://www.irb.gc.ca/cgi-bin/foliocgi.exe/refinfo_e – Attachment 13)

Fujian province

As the material above indicates, registration regulations vary between and even within provinces. The following material relates specifically to Fujian province, and indicates that illegitimate children are regarded as illegal and contrary to family planning regulations. However, such children may be registered on the payment of a fee. Children born outside of Fujian province are not regarded as coming within the scope of the province’s family planning regulations according to some sources, and they too may be registered on the payment of a fee.

On people who give birth to a child before marriage, Article 14 of the 2002 family planning regulations of Fujian province states:

Article 14 It is forbidden to give birth to a child out of an extramarital affair or before the time stipulated by this Regulation.

Under any of the following circumstances, the child born is regarded as born before the stipulated time by the Regulation:

(1) Those who give birth to a child before they get married (including those who become pregnant before they reach legally marrying age); (2) Those who give birth to a second child without reaching the time span between the two children; (3) Those who meet the requirement to give birth to another child and fail to obtain the permission.

Those who illegally adopt, give and abandon a child shall be viewed as childbirth in violation of family planning. Those who abandon children shall not be approved to give birth to any children (Population and Family Planning Regulation of Fujian Province, Adopted by the 33rd Meeting of the Standing Committee of the Ninth Provincial People’s Congress on 26 July 2002 – Attachment 14)

As already noted, an April 2004 DFAT advice states that for people returning to the province with an unregistered child (in this case, an extra child, not one born out of wedlock) there could be a problem in getting children born outside Fujian registered with the Fujian authorities, since registration is usually necessary to access state schools in Fujian. However, the evidence suggested that:

the problem of registration of children can be overcome by payment of an extra fee of several hundred or thousand RMB. In addition, in Fujian now, there are many private schools and clinics which will enrol or treat unregistered children. Their fees are not excessive by Chinese standards. Registration, while preferable when seeking work, is no longer essential in Fujian as more than 15% of Fujian’s population are unregistered workers (Department of Foreign Affairs and Trade 2004, DFAT Report 287 – RRT Information Request: CHN16609, 22 April – Attachment 5).

DFAT goes on to states that “the registration of the children born overseas may entail an extra fee but this applies to all children born outside Fujian and the fee would not be excessive by current day Chinese standards” (Department of Foreign Affairs and Trade 2004, DFAT Report 287 – RRT Information Request: CHN16609, 22 April – Attachment 5).

A 2004 US State Department profile reported on the payment of social compensation fees for out of plan births in Fujian:

[122] According to the FPFPC, [Fujian Provincial Family Planning Committee] social compensation fees are based on per capita disposable income levels for rural households and per capita net income for urban households (the ‘baseline’). The exact figure is based on country-level statistics, so the baseline varies throughout the province. For households with incomes significantly greater than the relevant income baselines, the local family planning commission can increase the social compensation fees. Social compensation fees range from the baseline or less for an unmarried couple that has a child to greater than size times the baseline for couples with four children or more and are determined by the local family planning committee in the city or country where the couple resides. In 2003, urban per capita net income in Changle City and Lianjiang County was approximately 10,050 (about $1,210) and rural disposable per capita income was approximately 4,401 renminbi (about $530). However, one woman with five children from Changle, Fujian, told U.S. officials in Guangzhou that she was fined a flat 50 renminbi (about $60) for each child after her first child born without a special circumstance birth permit.

[123] According to the FPFPC, couples unable to pay the fee immediately are allowed to pay in installments. Local family committees have the power to sue families that refuse to pay the requisite fees, but they cannot garnish wages. The FPFPC asserts that parents cannot be sterilized if they are unable to refuse to pay the fee (US Department of State 2004, China: Profile of Asylum Claims and Country Conditions, June, paras.122-123 http://www.pards.org/chinareportjune2004.doc – Accessed 2 November 2005 – Attachment 15).

Guangdong province

The following material discusses birth and household registration in Guangdong province, and includes a report indicating that it would be possible to register an illegitimate child on payment of a fee.

A 2007 DFAT advice provided information on family planning regulations and registration in Guahngzhou (the capital of Guangdong), and included information on the registration of the children of unmarried women:

Information from the Guangdong Provincial Population and Family Planning Committee reveals that even if a child born out of plan doesn’t have a birth certificate or a family planning card, he can still be legally registered with a Hukou, which is the right of all Chinese citizens. An unmarried mother would be able to register her child as long as she paid the prescribed penalty, which for a first child would include a fine of 3 – 6 times the local annual per capita disposable income (around RMB100,000 in Guangzhou in 2006).

6. Under current regulations, for a single mother to register her child’s Hukou in Guangzhou, the child can follow either the father’s or mother’s registration as long as one of the parent’s is registered in Guangzhou. However, there was a change of regulation in 1998. Before that time (including the time in question: August 1997) the registration of a child followed the mother’s Hukou only. That is to say that if, in 1997, a woman who was not registered in Guangzhou wished to register a child in Guangzhou, there would be no benefit from claiming that a Guangzhou resident was the father of the child.

7. The information above has been obtained from official sources. But, as with any regulations in China, requirements, interpretation and application of regulations vary widely from place to place or even between different officials at the same office. So although there does not seem to be any official requirement for providing a father’s identity documents when an unmarried mother gives birth and registers a child, it is always possible that an office, hospital or individual official may have insisted on the mother providing ID of the father (Department of Foreign Affairs and Trade 2007, DFAT Report 604: RRT Information Request CHN31325, 19 February – Attachment 16).

In 2005 the Canadian Immigration and Refugee Board issued a response concerning family planning in Guangdong. It states:

Family Planning Regulations for the Province of Guangdong

New population and family planning regulations for the province of Guangdong went into effect on 1 September 2002…

Information on the impact of the 2002 regulations on married and unmarried women was scarce among the sources consulted by the Research Directorate. According to Article 25 of the regulations, women of child-bearing age who have given birth to one child should make the intrauterine device their first choice for contraception (PRC 25 July 2002). Article 55(d) stipulates that, “[i]n the case of a first birth out of wedlock, a social support fee that is twice the amount” of the fee imposed on married couples who have one more child than is permitted, will be levied (ibid.). While one province, Jilin, has legalized the birth of a child to unmarried women, the Shanghai Star reported that Guangdong had indicated it would not follow suit (3 Jan. 2003). Under the national Population and Family Planning Law, births to single women are considered as “unplanned” and are subject to penalties (ibid.). However, Article 3 of the 2002 Guangdong regulations states that “[p]opulation and family planning work shall be coordinated with increasing educational and employment opportunities for women, improving women’s health and raising the status of women” (PRC 25 July 2002).

The provisions contained in the Guangdong family planning regulations apply to returned overseas Chinese and their families, … (‘CHN43031.E’ 2005, Immigration and Refugee Board of Canada, 24 February, http://www.irb- cisr.gc.ca/en/research/rir/index_e.htm?action=record.viewrec&gotorec=416249 – Accessed 22 March 2007 – Attachment 17).

Subsequently the board issued another Response stating:

Information on whether couples with more than one child would be penalized under family planning regulations or encounter difficulties in returning to China was scarce among the sources consulted by the Research Directorate. In a 21 January 2004 Response to Information Request, the Resource Information Centre (RIC) of the U.S. Citizenship and Immigration Services quoted an anthropologist who co-authored a 2001 report on China’s family planning policies as saying that “‘[i]n general, people who return to China from abroad are actively welcomed back to the ‘motherland,’ and children born outside China largely forgiven” (U.S.). According to a China specialist at the U.S. Department of State, also quoted in the RIC Response, while the implementation of family planning policies varies across the country, some people in Guangdong and Fujian reported no difficulties in returning to China after having had children abroad (U.S. 21 Jan. 2004). It should be noted that Article 24 of the 2002 Population and Family Planning Regulations of the Province of Guangdong stipulates that the provisions contained in the regulations apply to Chinese returning from overseas (PRC 25 July 2002). For further information on family planning policies in Guangdong and Fujian and their application to couples returning from overseas, please see CHN43031.E of 24 February 2005 (‘Responses To Information Requests (RIRs) CHN43512.E, 2005, Immigration and Refugee Board of Canada, 22 April, http://www.irb- cisr.gc.ca/en/research/rir/index_e.htm?action=record.viewrec&gotorec=416243 – Accessed 22 March 2007 – Attachment 18).

A 2004 advice from DFAT also discussed regulations in Guangdong, stating:

Guangdong provincial Family Planning Commission has told us that provincial regulations are strictly enforced.

If the applicant’s child was recognised as a Chinese national and returned with the mother to Guangzhou the applicant would be required to pay a fee. According to article 55 of the Guangdong Family Planning regulations (available at www.gdpic.gov.cn), the fee imposed on a single mother giving birth to a child is two times the local annual disposable income. Article 50 states that people with “excess births” shall not be employed by government, state-owned enterprises, state- dominated share holding companies and collectively owned enterprises within five years of the birth and shall not enjoy medical welfare nor shall they receive bonuses or other welfare related to collectively-owned enterprises within seven years of the birth. The reference to “excess births” includes children born outside of marriage…

… The Guangdong Province family planning regulations do not mention conditions under which the penalty for an out of plan can be waived. The Family Planning Commission has told us it does not waive penalties (DFAT 2004, DFAT Report No. 330 – RRT Information Request: CHN16967, 15 October, Question E – Attachment 19).

In an earlier 2004 advice, DFAT also stated:

…Furthermore, in present day China, particularly in provinces such as Fujian and Guangdong, sanctions relating to family planning can be avoided through payment of a fee to local authorities, parts of which may be both above and below the table. Such fees are generally not excessive by middle-class Chinese standards, though fees vary from locality to locality (DFAT 2004, DFAT Report No. 317 – RRT Information Request: CHN16905, 2 September – Attachment 20).

A 2005 issues paper by the Immigration and Refugee Board of Canada (IRB) provides some general information on household registration in Guangdong:

Although the province of Guangdong had enacted, as early as April 2002, a ban on the detention of undocumented migrants who had regular jobs and fixed homes (Solinger 20 Oct. 2004; Chan, Anita 9 Dec. 2004), the March 2003 incident involving the death of Sun Zhigang has resulted in additional reforms being undertaken at the provincial level (Chen 12-13 Dec. 2003). In March 2004, it was reported that the province of Guangdong was taking measures to protect the legal rights of its 23 million migrant workers and their families, including the rights to education and medical insurance (Business Daily Update 11 Mar. 2004). These measures included setting up offices across the province, at the provincial and local levels, to offer better services to migrants (ibid.). A 22 September 2004 article in the Shenzhen Daily also discusses the reforms taking place in the city of Guangzhou, where rural hukou holders with regular jobs and fixed residences would become eligible for Guangzhou hukous. A 28 December 2004 China Daily article discusses additional reforms planned by Guangdong Province, which, according to an official at the PSB, would lead to the total elimination of the agricultural hukou in the province in the years ahead.

According to a recent report by the Canadian Consulate General in Hong Kong, starting April 2004, Guangzhou began allowing brides from outside the city to obtain permanent Guangzhou hukous if they stayed married to Guangzhou men for more than six years; children of these marriages can also acquire Guangzhou hukous which would entitle them to preferential treatment with regard to education, employment and elections; highly skilled and highly educated people and their family members are also granted permission to reside in Guangzhou; Guangzhou natives working or studying abroad are allowed to re-register at their previous permanent hukou residence upon their return; investors from overseas, including investors from Hong Kong, and can obtain Guangzhou resident permits, and inland residents can obtain a Guangzhou hukou if they purchase a house or a property (9 Dec. 2004) (Immigration and Refugee Board of Canada 2005, China: Reforms of the Household Registration System (Hukou) (1998-2004), February, p.3,11-12 – Attachment 9).

3. Is there prejudice in China to children born out of wedlock?

The sources suggest that children who are born out of wedlock have the same legal rights as those born to a married couple, and that they are entitled to receive birth certificates and household registration. Reports also indicate that illegitimate children may experience societal discrimination.

Under Article 25 of the Marriage Law of the People’s Republic of China children born out of wedlock shall enjoy the same rights as children born in wedlock. The article states that no- one may harm or discriminate against them (Marriage Law of the People’s Republic of China, Adopted at the Third Session of the Fifth National People’s Congress on 10 September 1980 and amended in accordance with “Decision Regarding the Amendment (of Marriage Law of the People’s Republic of China)” passed at 21st Session of the Standing Committee of the Ninth National People’s Congress on 28 April 2001, Consulate General of the People’s Republic of China in New York website http://www.nyconsulate.prchina.org/eng/lsqz/laws/t42222.htm#M – Accessed 4 May 2004 – Attachment 21). A 2004 DFAT advice on illegitimate children in Guangdong states:

The Guangdong's family planning regulations do not specify penalties or discriminatory treatment directed at children born outside of marriage. The penalties are directed at the parents (see D above). Following payment of these penalties, all registered children are entitled to access health and educational facilities. If the penalties are not paid, the child remains unregistered. Unregistered children may be able to access these services but may be required to pay an extra fee. As with unmarried mothers, being a child born out of wedlock still attracts some degree of social stigma in Guangdong. Children might be subject to bullying or teasing at school, but are unlikely to suffer serious social disadvantage (DFAT 2004, DFAT Report No. 330 – RRT Information Request: CHN16967, 15 October, Question E – Attachment 19).

A recent research response by the Country Information Service of the Department of Immigration and Citizenship (DIAC) contains a section on illegitimate children which draws on a range of views and is reproduced below:

Q.1 What would be the impact of China’s one-child policy on a man and woman in a de- facto spouse relationship with one male child, one female child and where the woman is pregnant? R.1 In response to your question it should be noted that: “The one-child policy does not apply to couples who are, in the view of the Chinese state, merely cohabiting. For them—and for single mothers of all ages—there is a zero-child policy.” CX160621: CHINA: China’s One-Child Policy: Twenty-five Years Later, Internet site: Human LifeReview, http://www.humanlifereview.com, Winter 2006, Added: 31 August, 2006. The implementation of the Family Planning legislation is not uniform throughout China: “Since specific birth policies are set by each province according to local circumstances, the conditions vary from province to province and from city to city. Even within one province, different areas may have different circumstances. Within a single area, different ethnic minority groups may also be subject to different policies.” CX161166: CHINA: Family Planning Law and China’s Birth Control Situation, Internet site: China.org.c, http://www.china.org.cn, 18 October, 2002, Added: 7 September, 2006. The following is an excerpt from CX232: “…These are the children of China’s ‘unauthorised’ transient population (totalling possibly tens of millions) who have moved their place of residence, generally in search of better employment prospects, but in many cases because they were not allowed to have a second or third in their home town or village. These children do not have health or education rights and belong to one of the poorest groups in China. Illegitimate children, children born out of wedlock, are by definition outside of the family planning quota system. In practice, permission to bear a child under the quota system is only ever granted to couples, never to single women. Combined with the social condemnation to which single mothers are still often subject, the denial of social services and the imposition of fines almost inevitably forces most women in such a situation to leave home (whether or not a ‘shotgun wedding’ takes place). Thus, inevitably, illegitimate children in China are virtually never registered, but become a member of the ‘black’ population. This situation exists in practice despite the existence of art. 19 of the 1982 Marriage Law, which states that: “Children born out of wedlock enjoy the same rights as children born in lawful wedlock. No person shall harm them or discriminate against them. The father of a child born out of wedlock must bear part or the whole of the cost of mainetenance(sic) and education of the child until he or she can live on his or her own” (DIMA Country Information Service 2007, CHN8945: One Child Policy and Forced Abortion, 4 April - Attachment 22).

The September 2006 UK Home Office report includes a section on family planning for single women which is reproduced below:

32.41 As reported by the USSD Report 2005, “In order to delay childbearing, the Marriage Law sets the minimum marriage age for women at 20 years and for men at 22 years. It continued to be illegal in almost all provinces for a single woman to bear a child, and social compensation fees have been levied on unwed mothers.”…As reported by The Japan Times on 7 August 2006, “The 2001 edition of the Almanac of China's Health reports that approximately 10 million induced abortions are performed annually in China – with 20 to 30 percent done on unmarried young women. Under , a parent or guardian must approve an abortion performed on a girl of 18 or younger. Thus many pregnant girls who fear their family's reaction go to back-street abortionists or quacks that may endanger a girl's life.”…

32.42 As reported by the website Women of China on 11 January 2005, “China’s family planning policy is aimed mainly at married women, and it emphasizes long-term or permanent methods of contraception. A study conducted in 2004 by the Medical Center of Fudan University in Shanghai and the International Health Research Group found premarital sex among China’s urban youth was becoming more common. It also found that the abortion rate among unmarried women was alarmingly high”…However, as reported by Ted C. Fisher writing in his book China Inc. primarily about China’s emergence an a economic superpower, “In 2001, a count of the out-of-wedlock children produced by Shenzhen’s working women and mistresses over two decades numbered 520,000”…

32.43 As reported by the Center for Reproductive Rights (2005), “… government facilities mainly target married couples…” Family planning officials have little influence over single women who are not officially registered in urban areas and they do not count towards their birth quotas unless officially registered…(USSD Report 2005) (Section 2d and 2f) Municipal authorities have no power to return these rural migrants to their home villages…(USSD Report 2004)

…32.44 As reported by the Canadian IRB in a report dated 2 November 2001, “Unwed, pregnant women who do not want an abortion, but instead decide to have the baby might be able to pay the local government officials or the medical doctor to ‘look the other way’ and allow the pregnancy to be carried to term.”…

32.45 The report also stated:

“According to a professor of Sociology at Brown University whose area of research includes China’s one-child policy, each local region in China is subject to birth quotas (31 Oct. 2001). As unmarried women are ineligible for the quota, the professor felt that, if such a woman were to become pregnant then an abortion would most probably be encouraged. The professor also noted that, as in many cultures, there is some shame involved in pregnancies outside of marriage and that because of the economic difficulties of raising a child alone, many women would seek an abortion as a matter of choice”…

32.46 As reported by the Canadian IRB on 25 August 2005, information on this subject was difficult to find except in provincial family planning regulations…

32.47 As reported in the Guardian newspaper on 24 December 2002, Jilin province amended its family planning regulations in November 2002 to allow women who have reached the legal age for marriage but remain single and without children to have a child by artificial means. The Guardian also reported, “Critics of the law say that Chinese society is still deeply prejudiced against illegitimate children and fear that the offspring of a single mother would suffer the same discrimination”…

32.48 As reported by the Epoch Times (a publication sympathetic to Falun Gong) on 27 October 2005, there is confusion as to whether students are allowed to apply for birth permits. “In February [2004], China’s Ministry of Education released a new rule that revokes the marriage ban of college students. However, this rule fails to clearly state whether students studying at college are allowed to have a child. As such, the birth control units for colleges and universities insist on not granting birth permits to students for there are no related policies or birth quota for them.” [40g] (UK Home Office 2006, Country of Origin Information Report: China, 29 September – Attachment 12).

According to advice from DFAT in 2004, “out of plan birth” includes the concept of “out of marriage birth”. A child born outside of the plan may be registered after the payment of a fee. DFAT states:

According the Family Planning Commission, women are required to obtain a birth permit prior to giving birth. Any child born without a birth permit attracts the same fee as a child born to parents below the legal age of marriage (20 for women and 22 for men). The fee is between 60 and 100 per cent of the family’s previous year income (DFAT 2004, DFAT Report No. 336 – RRT Information Request: CHN17066, 28 October – Attachment 23).

In 2000 DFAT advised on fines paid before children can be registered:

Couples having children outside the regulations are meant to pay fines before the children can be registered. These fines vary from place to place but appear to be substantial. There are conflicting reports about how effectively these fines are applied in practice. Officials have told us that rural families are unswayed by the fines, regarding them simply as one of the necessary costs of having a large family; others have said the fines are rarely applied, or are applied only in a token fashion (e.g. choosing to use the mother’s income as a basis for determining the level of the fine, because the mother has no permanent job, and thus a much lower income than the father) (DIMA Country Information Service 2000, Country Information Report No. 554/00 – China – Treatment of ‘Black Children’, (sourced from DFAT advice of 3 November 2000), 7 November – Attachment 11).

4. How are children with the above issues who are born outside China, treated if they and their families return to China?

The issues of illegitimacy and household registration have been covered in the previous questions. The following RRT Research Responses contain additional material that may be of use.

A May 2004 response examines the treatment of a Chinese couple who married overseas and whether they could register their marriage and child (RRT Country Research 2004, Research Response CHN16740, 26 May – Attachment 24).

Another May 2004 response quotes older DFAT material on registration of overseas-born children (RRT Country Research 2004, Research Response CHN16752, 21 May – Attachment 25).

A March 2004 response examines residence requirements under the household registration regulations of Fujian and Shanghai, and includes general material on the hukou system (RRT Country Research 2004, Research Response CHN16479, 10 March – Attachment 26).

5. Is there a bureaucratic way that the Chinese authorities deal with these problems? Is it sufficient to pay a fine?

Please see Questions 1 and 2.

List of Sources Consulted

Internet Sources: Immigration & Refugee Board of Canada – Responses to Information Requests 2003-Current Google search engine Factiva

Databases: ISYS CISNET

List of Attachments

1. ‘Nationality Law of the People’s Republic of China’ (Promulgated and Effective 10 September 1980) China.org website, 10 September, http://www.china.org.cn/english/livinginchina/184710.htm# – Accessed 3 April 2007.

2. Immigration and Refugee Board of Canada 2005, CHN100385.E – China: Penalties faced by couples returning from overseas who are in violation of family planning regulations (2001 – 2005), 25 August

3. Greenhalgh, Susan & Winckler, Edwin 2001, Chinese State Birth Planning In The 1990s And Beyond [PS/CHN/01.001], September, US Department of Justice Immigration and Naturalization Service, p. 90

4. Department of Foreign Affairs and Trade 2004, DFAT Report No. 327 – RRT Information Request: CHN17017, 7 October

5. Department of Foreign Affairs and Trade 2004, DFAT Report 287 – RRT Information Request: CHN16609, 22 April

6. Department of Foreign Affairs and Trade 2004, DFAT Report 317: RRT Information Request CHN16905, 2 September

7. ACCORD, HHC & UNHCR 2006, ‘China’, 10th European Country of Origin Seminar, 1-2 December 2005, Budapest, 17 March, p.16

8. United States Citizenship and Immigration Services Resource Information Center 2002, Response CHN02002.ZNY ‘China: Information on Treatment of Returning Peasants and Workers Who Violated the One-child Family Planning Policy While Abroad’, 12 June – http://uscis.gov/graphics/services/asylum/ric/documentation/CHN02002.htm – Accessed 1 October 2004

9. Immigration and Refugee Board of Canada 2005, China: Reforms of the Household Registration System (Hukou) (1998-2004), February (CISNET).

10. Huawen, Liu 2004, The Child’s Right to Birth Registration – International and Chinese Perspectives, Norwegian Centre for Human Rights, pp.15-16 http://www.humanrights.uio.no/forskning/publ/rn/2004/0504.pdf – Accessed 4 December 2006

11. DIMA Country Information Service 2000, Country Information Report No. 554/00 – China – Treatment of ‘Black Children’, (sourced from DFAT advice of 3 November 2000), 7 November (CISNET China CX46100).

12. UK Home Office 2006, Country of Origin Information Report: China, UK Home Office website, 29 September, para.31.18 http://www.homeoffice.gov.uk/rds/pdfs06/china_041006.doc – Accessed 1 November 2006 13. Immigration and Refugee Board of Canada, 2001, Response CHN37661.E ‘:China: Whether parents of “out-of-plan” children were permitted to register and obtain official documentation for them following the November 2000 census’, 21 August – IRB Website http://www.irb.gc.ca/cgi-bin/foliocgi.exe/refinfo_e

14. Population and Family Planning Regulation of Fujian Province, Adopted by the 33rd Meeting of the Standing Committee of the Ninth Provincial People’s Congress on 26 July 2002

15. US Department of State 2004, China: Profile of Asylum Claims and Country Conditions, June, paras.122-123 http://www.pards.org/chinareportjune2004.doc – Accessed 2 November 2005

16. Department of Foreign Affairs and Trade 2007, DFAT Report 604: RRT Information Request CHN31325, 19 February

17. ‘CHN43031.E’ 2005, Immigration and Refugee Board of Canada, 24 February, http://www.irb- cisr.gc.ca/en/research/rir/index_e.htm?action=record.viewrec&gotorec=416249 – Accessed 22 March 2007

18. ‘Responses to Information Requests (RIRs) CHN43512.E, 2005, Immigration and Refugee Board of Canada, 22 April, http://www.irb- cisr.gc.ca/en/research/rir/index_e.htm?action=record.viewrec&gotorec=416243 – Accessed 22 March 2007

19. DFAT 2004, DFAT Report No. 330 – RRT Information Request: CHN16967, 15 October, Question E

20. DFAT 2004, DFAT Report No. 317 – RRT Information Request: CHN16905, 2 September

21. Marriage Law of the People’s Republic of China, Adopted at the Third Session of the Fifth National People’s Congress on 10 September 1980 and amended in accordance with “Decision Regarding the Amendment (of Marriage Law of the People’s Republic of China)” passed at 21st Session of the Standing Committee of the Ninth National People’s Congress on 28 April 2001, Consulate General of the People’s Republic of China in New York website http://www.nyconsulate.prchina.org/eng/lsqz/laws/t42222.htm#M – Accessed 4 May 2004

22. DIMA Country Information Service 2007, CHN8945: One Child Policy and Forced Abortion, 4 April (CISNET).

23. DFAT 2004, DFAT Report No. 336 – RRT Information Request: CHN17066, 28 October.

24. RRT Country Research 2004, Research Response CHN16740, 26 May.

25. RRT Country Research 2004, Research Response CHN16752, 21 May.

26. RRT Country Research 2004, Research Response CHN16479, 10 March.