Refugee Review Tribunal AUSTRALIA RRT RESEARCH RESPONSE. Keywords: China Household registration Unmarried parents Children born overseas Penalties

Transcription

1 Refugee Review Tribunal AUSTRALIA RRT RESEARCH RESPONSE Research Response Number: CHN31574 Country: China Date: 13 April 2007 Keywords: China Household registration Unmarried parents Children born overseas Penalties 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 it possible to have children born out of wedlock registered on the hukou in China and in Fu Qing city in particular? 2. If so, is it possible to have the second child registered on the hukou? 3. What is the Chinese government s position in relation to children born overseas to Chinese nationals? 4. Are children born out of wedlock discriminated against or harmed in China and in Fu Qing city in particular? 5. What penalties, discrimination or harm are the children s parents likely to face if they return to China? RESPONSE 1. Is it possible to have children born out of wedlock registered on the hukou in China and in Fu Qing city in particular? The available information suggests that children born out of wedlock are able to receive birth certificates and household registration. Children born out of wedlock 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 noone 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

2 Accessed 4 May 2004 Attachment 1). Household registration (hukou) In 2004, Liu Huawen writing for the Norwegian Centre for Human Rights noted that China has always emphasised the importance of birth registration. He writes that birth registration is a part of the household registration system (Huawen, Liu 2004, The Child s Right to Birth Registration International and Chinese Perspectives, Norwegian Centre for Human Rights, p.15 Accessed 4 December 2006 Attachment 2). Liu Huawen continued: 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 Accessed 4 December 2006 Attachment 2). Sources in an Issue Paper on household registration prepared by the Immigration and Refugee Board of Canada (IRB) note that each individual must be registered at birth with the local hukou authorities. It states that a hukou is mandatory for all Chinese citizens aged one month and over. In order to acquire hukou registration, one must produce birth papers. However, some children born outside of the family planning quota (mainly in the countryside) may not have been registered with the authorities (Immigration and Refugee Board of Canada 2005, China: Reforms of the Household Registration System (Hukou) ( ), February, p.3,11-12 Attachment 3). 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 4; see also RRT Country Research 2004, Research Response CHN17066, 28 October Attachment 5). 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

3 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 6). 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, 29 September, para Attachment 7). A past RRT Research Response dated 15 December 2006 provides information on registration for children born out of wedlock (RRT Country Research 2006, Research Response CHN31026, 15 December Attachment 8). 2. If so, is it possible to have the second child registered on the hukou? A recent MRT Research Response dated 5 April 2007 provides information on the laws and difficulties involved in registering a second child. While this response focuses on Hunan province, much of the information is relevant (MRT Country Research 2007, Research Response CHN31562, 5 April Attachment 9). In relation to Fujian province specifically, an April 2004 DFAT advice suggests that although there would be no penalties for returning with more than one child, there would 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 states that: 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 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 10). DFAT goes on to state 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 10). DFAT further states: The Family Planning Law in Fujian is regulated by a mixture of national, provincial and local laws and rules. Enforcement is by local authorities and evidence suggests that some local governments enforce family planning rules more vigorously than others. This has created a patchwork of different rules and enforcement across the province. Family planning rules are more strictly enforced in the larger cities such as Xiamen and Fuzhou, than in the poorer countryside. The rules are also more strictly enforced in areas where state-owned industry is stronger, such as the steel making city of Sanming, than in the mountainous or coastal fishing areas. In general, however, Fujian has one of the least coercive family planning regimes

4 in China. In rural areas of Fujian more then half of all families have more than one child. The number of one child families is greater in the larger cities. However, even here, multiple child families are not unknown (Department of Foreign Affairs and Trade 2004, DFAT Report 287 RRT Information Request: CHN16609, 22 April Attachment 10). 3. What is the Chinese government s position in relation to children born overseas to Chinese nationals? The available information suggests that children born overseas to Chinese nationals who are returning to China are generally welcomed. This especially applies to the overseas-born children of returning students or professionals. According to an IRB report, a university anthropologist who has researched the subject of family planning in China told the US Citizenship 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. A 2001 report on family planning in China, prepared for the US Department of Justice Immigration and Naturalization Service, states that while residing or travelling abroad, Overseas Chinese are largely exempt from domestic birth planning rules (Immigration and Refugee Board of Canada 2005, CHN E China: Penalties faced by couples returning from overseas who are in violation of family planning regulations ( ), 25 August Attachment 11; 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 12). Regarding nationality of children born overseas to Chinese nationals, according to Liu Huawen: The Nationality law of PRC stipulates that any person born in China whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality; moreover, any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality (Huawen, Liu 2004, The Child s Right to Birth Registration International and Chinese Perspectives, Norwegian Centre for Human Rights, pp Accessed 4 December 2006 Attachment 2). Other information on children born overseas to Chinese nationals is included in: RRT Research Response dated 25 September 2006 provides detailed information on children born overseas to Chinese nationals, with particular reference to Fujian province (RRT Country Research 2006, Research Response CHN30673, 25 September Attachment 13). RRT Research Response dated 9 June 2004 provides some information on children born outside China, including exemptions from the one-child policy for Chinese nationals who are studying abroad (RRT Country Research 2004, Research Response CHN16817, 9 June Attachment 14). Overseas Marriage DFAT advice in October 2004 provides information in response to questions regarding the recognition of overseas marriages and children born out of plan. DFAT advises that Fujian authorities do not recognise overseas marriages, and provides information on procedures to have overseas marriage recognised upon return to China (DFAT 2004, DFAT Report No. 336

5 RRT Information Request: CHN17066, 28 October Attachment 4; see also RRT Country Research 2004, Research Response CHN17066, 28 October Attachment 5). A 2005 IRB response also provides some information on China s attitude to overseas marriages of Chinese nationals (Immigration and Refugee Board of Canada 2005, CHN E China: Whether China recognizes civil or religious marriages performed outside China, between either two Chinese nationals or a Chinese national and a foreign national; procedures for registering a foreign marriage in China when the couple returns to China; whether permission is required from Chinese authorities for two Chinese nationals to marry outside of the country under Chinese regulations ( ), 27 May Attachment 15). 4. Are children born out of wedlock discriminated against or harmed in China and in Fu Qing city in particular? Limited information was found regarding societal attitudes in China towards children born out of wedlock. As stated in Question 1, under Article 25 of the Marriage Law of the People s Republic of China children born out of wedlock 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 Accessed 4 May 2004 Attachment 1). However, information from the UK Home Office on family planning for single women in China includes an article from the Guardian which states [c]ritics 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. The UK Home Office also mentions that abortions are encouraged for unmarried women who fall pregnant, and states 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. It is unclear whether this prejudice relates only to single women who have children, or whether it extends to the children of unmarried couples (UK Home Office 2006, Country of Origin Information Report: China, 29 September, p. 140 Attachment 7). Black children According to the 2001 report on family planning, black children are children who result from unauthorized pregnancies carried to term in violation of program rules. The report goes on to state that [b]y classifying all pregnancies and births as planned or unplanned, the birth planning program has effectively created a whole new class of children who are illegitimate. Sometimes known as black children or the black population (hei haizi, hei renkou), these unplanned persons are legally and socially nonpersons. However, a 2005 report by the European Country of Origin Information Seminar suggests that in general, while black children might suffer economic disadvantage, they are not ill-treated as a group (Greenhalgh, Susan & Winckler, Edwin 2001, Chinese State Birth Planning in the 1990s and Beyond, September, Immigration and Naturalisation Service, pp Attachment 12;

6 ACCORD, HHC & UNHCR 2006, China, 10 th European Country of Origin Seminar, 1-2 December 2005, Budapest, 17 March, p. 16 Attachment 16). 5. What penalties, discrimination or harm are the children s parents likely to face if they return to China? Limited information was found in regards to the treatment of returning Chinese who had children while abroad. As mentioned in Question 3, some sources report that people returning to China are actively welcomed, and out-of-plan children forgiven. The reports detailed below appear to confirm this. Should they be penalised, the available information suggests that the penalty would be a fine/social compensation fee. Family planning regulations tend to be enforced by financial methods, rather than involving physical violence. According to the most recent US Department of State report on human rights in China, Central government policy formally prohibits the use of physical coercion to compel persons to submit to abortion or sterilization, although reports of physical coercion to meet birth targets continued (US Department of State 2007, Country Reports on Human Rights Practices for 2006 China, March Attachment 17). A recent RRT Research Response dated 28 March 2007 provides recent country information concerning the treatment by the PRC authorities of a parent of a black child also born out of wedlock returning to China from overseas. Although the response relates to Guangdong province, much of the information is relevant (RRT Country Research 2007, Research Response CHN31552, 28 March Attachment 18). The most recent report on China from the UK Home Office includes a section on Treatment of Foreign Born Children. The information includes a number of the same sources already cited in this response, but is nevertheless quoted in full below: TREATMENT OF FOREIGN BORN CHILDREN As reported by the US Citizenship and Immigration Services on 21 January 2004, Relatively little information is available to the Resource Information Center (RIC) within time constraints on the treatment of rural Chinese women who return to China with children born outside the country. For this reason, it is unclear whether the fact that the children are U.S. citizens makes any difference This report also stated: A China specialist at the U.S. State Department told the RIC that his office presently had little information on the treatment of returning Chinese who had children while abroad. The specialist added that actual implementation of China s population control policy varies considerably throughout the country, and that some people in southern Fujian and Guangdong provinces had reported no problems in returning after having children abroad (U.S. DOS/DRL 20 Jan 2004) An earlier report dated 12 June 2002 by the same source stated: According to sources contacted by the Resource Information Center (RIC), Chinese authorities seem to be dealing relatively leniently with citizens who return to China with two or more children, particularly students and professionals. If they are punished at all for violating family planning policies, it is generally with fines rather than more severe measures, although the fines can be steep. Experts consulted by the RIC had little information about whether this lenience extends to workers and peasants.

7 39.21 This report also stated: A University of California (Irvine) anthropologist who is an expert on China s family planning program, and who co-wrote a 2001 RIC report on the topic, said she has little information about whether returning workers and peasants who violated birth control policies while abroad receive the same lenient treatment as students and professionals. She noted that, in general, Chinese citizens who have above-quota children while abroad generally are treated more leniently than those who violate quotas inside China (Expert 11, 12 Jun 2002) The rights of returning overseas Chinese are protected by the Law of the Rights and Interests of Returned Overseas Chinese and the Family Members of Overseas Chinese, effective as of 1 January Article 3 of this Act states: Returned overseas Chinese and the family members of overseas Chinese shall be entitled to the citizen s rights prescribed by tile [sic] Constitution and the law and at the same time shall perform the citizen s duties prescribed by the Constitution and the law. No organization or individual may discriminate against them. The State shall, in accordance with the actual conditions and the characteristics of returned overseas Chinese and the family members of overseas Chinese, give them appropriate preferential treatment, and the specific measures thereof shall be formulated by the State Council or the relevant competent departments under the State Council (UK Home Office 2006, Country of Origin Information Report: China, UK Home Office website, 29 September, pp Attachment 7). According to the previously mentioned 2001 report on family planning: 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 Hong Kong 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 (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 12). In this report Greenlaugh & Winckler also state although compliance with birth rules is still compulsory, government enforcement of the birth program has adapted its methods to a socialist market economy, relying less on crash campaigns that sometimes involved some physical violence and more on economic incentives and penalties. The report also states that while residing or traveling abroad, Overseas Chinese are largely exempt from domestic birth planning rules, and can return to China with a pregnancy or a child born abroad without being penalized (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, pp. 2-3, p. 90 Attachment 12).

8 An IRB report dated 6 September 2005 provides information on the treatment of pregnant, unmarried women by state authorities. The report states: As reported by the United States (US) Department of State, [i]t 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 (Country Reports Feb. 2005, Sec. 1). The same source noted that in 2004 the policy of levying fees for bearing a child out of wedlock was lifted on an experimental basis in some counties, and was relaxed in cases where couples promptly registered their marriages (US 28 Feb. 2005, Sec. 1). According to Article 14 of the Population and Family Planning Regulations of Fujian Province, a woman is not allowed to give birth out of wedlock (PRC 30 July 2002). In the case of an unmarried woman who bears a child, Article 39 sets out the application of a social maintenance fee equivalent to four to six times the average annual disposable income of the residents of the county where the woman resides (ibid.). The fine is higher for a second or subsequent child born out of wedlock (ibid.) (Immigration and Refugee Board of Canada 2005, CHN E China: treatment of pregnant, unmarried women by state authorities, particularly in Guangdong and Fujian; whether unmarried women are obliged to undergo pregnancy tests by family planning officials, 6 September Attachment 19). Other relevant information is included in: An IRB report dated 25 August 2005 provides information on penalties faced by couples returning from overseas who are in violation of family planning regulations (Immigration and Refugee Board of Canada 2005, CHN E China: Penalties faced by couples returning from overseas who are in violation of family planning regulations ( ), 25 August Attachment 11). RRT Research Response dated 3 November 2005 provides information on whether coercive family planning practices (i.e. forced abortion / sterilisation) had been implemented in the Fuqing area in recent times (RRT Country Research 2005, Research Response CHN17646, 3 November Attachment 20). RRT Research Response dated 5 April 2005 provides information on the enforcement of family planning rules in Fujian province (RRT Country Research 2005, Research Response CHN17298, 5 April Attachment 21). List of Sources Consulted Internet Sources: Google search engine Databases: FACTIVA (news database) BACIS (DIMA Country Information database) REFINFO (IRBDC (Canada) Country Information database) ISYS (RRT Country Research database, including Amnesty International, Human Rights Watch, US Department of State Reports) RRT Library Catalogue

9 List of Attachments 1. 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 Accessed 4 May Huawen, Liu 2004, The Child s Right to Birth Registration International and Chinese Perspectives, Norwegian Centre for Human Rights Accessed 4 December Immigration and Refugee Board of Canada 2005, China: Reforms of the Household Registration System (Hukou) ( ), February. (REFINFO) 4. DFAT 2004, DFAT Report No. 336 RRT Information Request: CHN17066, 28 October. 5. RRT Country Research 2004, Research Response CHN17066, 28 October. 6. 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) 7. UK Home Office 2006, Country of Origin Information Report: China, 29 September. 8. RRT Country Research 2006, Research Response CHN31026, 15 December. 9. MRT Country Research 2007, Research Response CHN31562, 5 April. 10. Department of Foreign Affairs and Trade 2004, DFAT Report 287 RRT Information Request: CHN16609, 22 April. 11. Immigration and Refugee Board of Canada 2005, CHN E China: Penalties faced by couples returning from overseas who are in violation of family planning regulations ( ), 25 August. (REFINFO) 12. 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. 13. RRT Country Research 2006, Research Response CHN30673, 25 September. 14. RRT Country Research 2004, Research Response CHN16817, 9 June. 15. Immigration and Refugee Board of Canada 2005, CHN E China: Whether China recognizes civil or religious marriages performed outside China, between either two Chinese nationals or a Chinese national and a foreign national;

10 procedures for registering a foreign marriage in China when the couple returns to China; whether permission is required from Chinese authorities for two Chinese nationals to marry outside of the country under Chinese regulations ( ), 27 May. (REFINFO) 16. ACCORD, HHC & UNHCR 2006, China, 10 th European Country of Origin Seminar, 1-2 December 2005, Budapest, 17 March. 17. US Department of State 2007, Country Reports on Human Rights Practices for 2006 China, March. 18. RRT Country Research 2007, Research Response CHN31552, 28 March. 19. Immigration and Refugee Board of Canada 2005, CHN E China: treatment of pregnant, unmarried women by state authorities, particularly in Guangdong and Fujian; whether unmarried women are obliged to undergo pregnancy tests by family planning officials, 6 September. (REFINFO) 20. RRT Country Research 2005, Research Response CHN17646, 3 November. 21. RRT Country Research 2005, Research Response CHN17298, 5 April.