New regulations on entry and exit in China: exceptions to the electronic data verification and the notification of non-admissions give rise to rights disputes

The Regulations of the State Council on the Administration of Exit and Entry were formally implemented on 15 September. The new regulations, which cover the security of citizens in the event of departure, the verification of documents, the measures of non-admission and the management of intermediaries, are set out in 19 articles. The State Council has stated that the institutional objectives are to regulate management, safeguard legitimate rights and interests and safeguard national security; At the same time, human rights lawyers and researchers have raised concerns about the provisions that expand information verification and exit restrictions.

Electronic data available at application session

Article 3 of the new regulation specifies that, in verifying identity and the reasons for the application, the immigration authorities and visa authorities may request the applicant to produce documents, information and electronic data and to cooperate. The legislation also provides that, in case of application or misrepresentation, documents may be withheld or denied entry or exit.

In its responses to journalists, the National Migration Authority stated that these provisions were used to improve the regulatory framework for the administration of entry and exit and that legal rights and interests of persons should be guaranteed by law. Legal scholars interviewed by the Voice of America believe that the broader application of concepts such as “national security” may increase the discretion of the executive.

Written notification in principle of non-exit status, with exceptions

Article 6 provides that, for persons who are legally precluded from leaving the country, the decision-making body shall in principle inform in writing the facts, reasons, grounds and avenues of redress; However, the person concerned may not be informed if it may affect national security, criminal investigation, etc. It is precisely this exception that focuses on whether it will keep some of the border control measures in a state where the person concerned will not be informed until the airport.

The new regulations also include some specific cases, such as violations of export control, regulations on the import and export of technology, which may endanger industry or technical security, where the competent authorities may decide not to allow departure. The official note stressed that these measures have a legal basis and are not generally restricted to all persons who leave the country.

The legislation further institutionalized the existing border control practices

The new regulations do not establish “marginal controls” from zero, since China's law on entry into the country previously had a non-removable regime. The change is mainly due to more detailed requirements for the verification of applications, written notification, departmental synergy and specific restrictions. For supporters, this would help to harmonize the law enforcement paradigm; For critics, the section of the text dealing with national security, electronic data and the non-disclosure of exceptions may make it easier for the previously case-specific border controls to be embedded in the day-to-day administration.

The practical impact of the new regulations after their implementation requires case-specific observations: which departments have filed a refusal to leave the country, whether the person has obtained a written decision, whether the administrative review or the proceedings have been effectively reviewed, and to what extent electronic data verification is required in practice. The text of the statute has entered into force, but its boundaries are ultimately dependent on its implementation.