Chinese nationality law

Before the mid-19th century, nationality issues involving China were extremely rare and could be handled on an individual basis.[1] Customary law dictated that children born to Chinese subjects took the nationality of the father, but did not have clear rules for renunciation of citizenship or the naturalization of aliens.[2] Imperial Chinese subjects were traditionally severely restricted from traveling overseas and international travel was only sanctioned for official business.[3] Disputes arising from nationality questions became more common as the Qing dynasty was forced through a series of unequal treaties to open up trade with Western empires and allow its subjects to migrate overseas.[1][3]

The Qing government created the first Chinese nationality law in 1909, which defined a Chinese national as any person born to a Chinese father. Children born to a Chinese mother inherited her nationality only if the father was stateless or had unknown nationality status.[4] Women who married foreigners lost Chinese nationality if they took the nationality of their husbands.[5] Nationality could be inherited perpetually from Chinese fathers, making it difficult to lose for men.[6] These regulations were enacted in response to a 1907 statute passed in the Netherlands that retroactively treated all Chinese born in the Dutch East Indies as Dutch citizens.[7] Jus sanguinis was chosen to define Chinese nationality so that the Qing could counter foreign claims on overseas Chinese populations and maintain the perpetual allegiance of its subjects living abroad through paternal lineage.[8] A Chinese word called xuètǒng (血统), which means "bloodline" as a literal translation, is used to explain the descent relationship that would characterize someone as being of Chinese descent, and therefore, eligible under the Qing laws and beyond, for Chinese citizenship.[9]

The 1909 law placed restrictions on Chinese subjects with dual nationality within China. At the time, foreign powers exercised extraterritoriality over their own nationals residing in China. Chinese subjects claiming another nationality by virtue of their birth in a foreign concession became exempt from Qing taxation and legal jurisdiction within Chinese borders.[10] A strict policy against automatic expatriation was adopted to prevent this; a Chinese individual's foreign nationality was not recognized by Qing authorities unless specifically approved.[5] Foreigners who acquired Chinese nationality were subject to restrictions as well; naturalized Qing subjects could not serve in high military or political office until 20 years after becoming a Chinese national, and only with imperial authorization.[11]

Nationality law remained largely unchanged in the Republican China,[5] except for a major revision passed by the Kuomintang in 1929 that decoupled a woman's nationality from that of her husband and minimized circumstances in which children would be born stateless.[12] After the Communist Revolution, the new government abolished all republican-era legislation but did not immediately create laws to replace them.[13] Mainland China lacked formal nationality regulations[4] until greater legal reform began in the late 1970s to 1980s.[14] The government unofficially applied the 1929 statute during this time to resolve nationality issues,[15] and also made a mother's nationality normally transferable to her children outside of cases where the father is stateless.[16] The PRC does not recognize dual nationality[17] and actively discouraged its occurrence in its treaties with Indonesia, Nepal,[18] and Mongolia[19] in the 1950s. When the National People's Congress adopted the current nationality law in 1980,[20] a further stipulation was added that automatically revokes nationality from Chinese nationals who settle overseas and voluntarily acquire foreign citizenship.[21]

Hong Kong was a British colony from 1842 until its transfer to China in 1997.[22] It initially consisted only of Hong Kong Island and was expanded to include Kowloon Peninsula and Stonecutters Island in 1860. These areas were ceded in perpetuity to the United Kingdom by the Qing dynasty after the Opium Wars.[23] Britain negotiated a further expansion of the colony to include the New Territories in 1898, which were leased (rather than ceded) from China for a period of 99 years.[24] Towards the end of this lease, the British and Chinese governments entered into negotiations over the future of Hong Kong and agreed on the Sino-British Joint Declaration in 1984. The entire territory of Hong Kong would be transferred to China at the conclusion of the New Territories lease in 1997 and governed under Chinese sovereignty as a special administrative region.[25]

Macau was established as a trading post in 1557 permanently leased to the Kingdom of Portugal by the Ming dynasty.[26] The territory was later fully ceded in the 1887 Sino-Portuguese Treaty of Peking, but returned to China in 1999.[27] Following the 1974 Carnation Revolution, Portugal formally relinquished Macau as an overseas province in 1976 and acknowledged it as a "Chinese territory under Portuguese administration."[28] After negotiations on Hong Kong's future had concluded, China and Portugal began deliberations on Macau in 1986 and agreed on the Sino-Portuguese Joint Declaration in 1987. Macau would be transferred to China in 1999 and governed largely under the same terms as Hong Kong.[29]

Although most Hongkongers at the time were British Dependent Territories citizens (BDTCs)[30] and a substantial number of Macau residents held Portuguese citizenship,[31] China treats all ethnic Chinese born in these territories before and after the handovers as Chinese nationals.[32][33] Hong Kong BDTCs who did not have strong ties to another British Dependent Territory lost BDTC status on July 1, 1997.[34] Former ethnic Chinese BDTCs could retain British nationality if they had voluntarily registered as British Nationals (Overseas)[34] or acquired full British citizenship as part of the British Nationality Selection Scheme prior to the transfer of sovereignty,[35] while Macau residents with Portuguese citizenship were permitted to continue that status in all cases.[36] However, Chinese authorities treat these individuals solely as Chinese nationals and bar them from receiving British or Portuguese consular assistance while in Chinese territory. Given that a large number of Hongkongers and Macanese continue to hold dual nationality after the handover, Chinese nationality law as implemented in the special administrative regions does not remove citizenship from Hong Kong or Macau residents who acquire foreign nationality.[32][33]

The Republic of China (ROC) governed mainland China from 1912 to 1949.[37] Near the end of the Chinese Civil War, the Nationalist government was forced to retreat to Taiwan by the Communist Party, which subsequently established the People's Republic of China (PRC) in 1949. Since the conclusion of the war, the ROC has controlled only the Taiwan Area.[38] Because both the PRC and ROC constitutionally claim areas under the other's control,[39][40] the two governments treat each other's nationals as their own.[41][42]

Hukou is a household registration system that regulates internal migration within mainland China.[66] Citizens are assigned a hukou classification (rural or urban) at birth based on their family's registration. The type of social welfare a person receives from the state is tied to hukou; individuals with rural hukou are allocated a housing plot with land for farming, while urban residents are provided with a variety of government services in their locale including healthcare, public education, unemployment benefits, and subsidized housing.[67] Changing from a rural hukou to an urban one was tightly controlled and very rare until the 1980s.[68] While reforms have relaxed these regulations in recent years, requirements for changing registration vary by location and can be very stringent in the largest cities.[69] Likewise, urban-to-rural conversion is extremely difficult due to the land use rights associated with rural hukou.[70]

Chinese nationals who acquire a foreign nationality are obliged to renounce their Chinese nationality, which also implies that their hukou is cancelled.[71] However, high numbers of former Chinese citizens were reported who are reluctant to cancel their hukou due to the social benefits bound to it.[72] Due to insufficient communication between the relevant authorities, such practice even allows these individuals to illegally reacquire Chinese nationality by applying for a Chinese passport on the basis of their hukou they did not cancel as required.[73]

Chinese nationals of mainland China are required to register for Resident Identity Cards,[74] eligible to hold People's Republic of China passports,[75] and able to vote in direct elections for local People's Congresses or village committees.[76] When temporarily visiting Hong Kong or Macau, mainland Chinese residents must obtain Two-way Permits from their local public security bureau authorities.[77] If permanently settling in either special administrative region, they must be approved for One-way Permits.[78]

Despite nominal constitutional protections against arbitrary arrest and detention, law enforcement in mainland China may either detain any citizen or ban any citizen from leaving the country, even without the issuance of any formal arrest warrants or explicit authorization from judicial authorities.[79][80][81] Political dissidents and their families are often subject to house arrest within the country.[82] Invasive personal surveillance on the political dissidents, by the Chinese Communist Party, is conducted within the country and even abroad in foreign jurisdictions (with the assistance of foreign nationals).[83][84][85] Mainland authorities will occasionally perform extraordinary rendition on Chinese citizens, abducting individuals of interest who are overseas and forcibly returning them to China.[86]

Hong Kong and Macau permanent residents have the unrestricted right to live and work in their territories,[87][88] but do not have automatic residence or employment rights in mainland China. The central government issues Home Return Permits to residents who are Chinese citizens for travel purposes[89] and Residence Permits if they intend to reside or work in the mainland for longer than six months.[90]

Chinese nationals with right of abode in these regions are eligible for Hong Kong[91] or Macau Resident Identity Cards,[92] able to hold Hong Kong Special Administrative Region passports[93] or Macau Special Administrative Region passports,[92] and may vote in elections for the Legislative Council of Hong Kong[94] or Legislative Assembly of Macau.[95]

Similar to Hong Kong and Macau residents, Taiwanese residents are issued Mainland Travel Permits for short-term travel[96] and Residence Permits if they intend to reside or work in the mainland for longer than six months.[90] While they are also eligible to hold PRC passports,[97] Taiwanese law automatically strips household registration from ROC nationals who are issued mainland passports without specific authorization from Taiwanese authorities.[98][99]