“Everyone has the right to a nationality”

China’s hidden children: denied documents and at risk of statelessness

19 January 2017 | Stephanie Gordon, PhD candidate - University of Leicester
Stateless in the Netherlands

Perched on a child-sized chair, I sat in a makeshift pre-school classroom situated on the ground floor of an apartment complex on the outskirts of Beijing. I was discussing with Ms. Cheng, the situation faced by a single mother in Beijing, 2014. Next to Ms. Cheng sat her four-and-a-half-year-old daughter, Xiao Cheng. Ms. Cheng was worried, because her daughter was approaching six years, the time to enter primary education, and Xiao Cheng lacked the documents necessary to enter a school in Beijing.

Xiao Cheng looked on as we discussed her situation, not understanding as yet the situation into which she had been born, nor what the lack of a hukou (household registration), the topic of our conversation, really meant. Her mother, however, was all too aware of the difficulties her youngest child would face in the absence of China’s primary legal identity documentation.

Ms. Cheng explained that she had never married Xiao Cheng’s father; his family did not approve of this divorced woman with two children. The father had furthermore refused to be put on the hukou booklet as the father and was now married to another woman with whom he had a child. Without his co-operation, local bureaucrats refused to register Xiao Cheng’s birth and thus refused her the proof of birth registration - the hukou which attested her Chinese nationality.

Negotiations over documentation

In 2010, the census data confirmed that at least 13 million children were affected by lack of hukou, which serves as birth registration and affirms nationality. The true number was probably closer to 30 million. Most children were denied hukou by local bureaucrats because their parents violated the so-called ‘one child policy’ still in place at that time, which restricted parents from having more than one or two (for those in rural areas whose first child was a girl) children or having children outside wedlock. This was relaxed into a two child policy in October 2015. The bureaucrats would demand that parents first pay a fine for their violation upon which their child would be registered.

Without the hukou children such as Xiao Chen, had no documented relationship with the Chinese state. When these children reached adulthood they would be unable to work legally, get married, travel on planes, trains or long distance buses, open a bank account or access other rights dependent on having proof of legal personhood. Moreover, they lacked documents attesting their nationality, which was a prerequisite for an ID card and passport application. These children are best understood as ‘at risk of statelessness’.

In late April 2016 the Chinese central government decreed, in a new policy, that all police stations would henceforth be obliged to issue the hukou to all children in China. The space for bureaucrats to exercise discretion over documents thus significantly shrunk, although it has certainly not disappeared. Fines are still in place for those who have a third child or children outside wedlock. As yet, it is still unclear if all children are given the hukou in practice.

Vital to understanding the risk of statelessness is looking at the process of obtaining documentation affirming nationality. In China, as in many other countries, it is dependent on the bureaucrats’ interpretation of national laws. This links state level legislation to the human level of interaction between government officials or bureaucrats and those seeking documentation. While literature tends to focus on state legislation as the main reason for creating statelessness, this does not account for the actual process of how people become documented.

I find that in China encounters with bureaucrats form people’s experiences of the state. These low level government officials utilise their position to interpret law with little judicial oversight, leaving children at risk of statelessness. Concurrently, parents also interpret laws in order to keep bureaucrats, and their legal interpretation, in check. Parents of undocumented children use strategies to negotiate or circumvent the system and the bureaucrats who create their vulnerability.

The manner in which people negotiate their situation can have a very real impact on when the individual may become documented. For this reason, who should be entitled to nationality as mandated by the law, does not necessarily square with who gets nationality documents. It is for this reason that exploring the category of people ‘at risk of statelessness’ is so vital to understanding of statelessness itself.

This demands that we make the state a site of enquiry when discussing statelessness, investigating the spaces where contestation can surface within the context of the documentation process. The Chinese state is complex, with layers of governance and overlapping bureaucracies. The interpretation of laws is therefore open to subjectivity. Documentation is manipulated by bureaucrats as the central government ‘keeps one eye open and one eye closed’ as one parent denied the hukou told me. These divides in the state create spaces for discretionary interpretation and implementation of policy. The spaces of ambiguity between policies and implementation can be appropriated by both bureaucrats and citizens. Bureaucrats and those seeking documentation have a significant part to play in negotiating documents.

Impact of documentation denial beyond China

The Chinese case study illustrates the nature of the interdependence between nationality and the documentation that corroborates nationality. Documents not only realise nationality in the legal sense but also the rights and resources that are associated with full citizenship. Complications associated with the absence of hukou extend beyond the domestic sphere. Under any reading of the nationality law these children should be Chinese nationals, since they are born in China to Chinese parents. Yet not only did they lack the rights of citizenship seemingly accorded to other Chinese persons, they even lacked proof they were Chinese. Thus, for example, if they crossed a nation state border they would not necessarily be allowed to re-enter China. Outside of China they most likely would neither be recognised nor offered diplomatic protection.

Much of the work I have done over the last few years, alongside my Ph.D., has been with Chinese persons seeking asylum in the UK. Many have travelled through irregular channels, mostly smuggled by groups called ‘snakeheads’. These smuggled persons would travel on stolen passports through a number of countries before reaching the United Kingdom. Upon arrival the smugglers, who travelled together with them, would confiscate their fake documents. Often these irregular migrants had never owned a valid Chinese passport. Their personal identification consisted of a Chinese hukou and, for those with the hukou, an ID card acquired at the age of 16. If the individual’s asylum claim in the UK failed, they would be taken to the Chinese embassy to be issued with Emergency Travel Documentation. Over the years I learned that issue of re-documentation was often dependent on the person’s ‘co-operation’. Failed asylum seekers would need to provide their last known address as it appeared on the Chinese Hukou Register, a 15 or 18 digit ID card number issued to all those aged over 16 (given only to persons with a hukou), the address of the police station in China to which they had registered their home address, and contact details of a relative or friend in China. Those who were unable to provide this information would not be granted Emergency Travel Documentation by the Chinese state. Without valid travel documentation they could not re-enter China. However, when failed asylum seekers claimed they no longer had an address in China, (for example if their home had been demolished), or that they never had, or renewed, an ID card, or that they never had a hukou in the first place, it appears as if most were denied permission to obtain travel documents.

Reflections

Documentation serves as a bridge between understanding two forms of vulnerability: documentation is vital to being recognised at an international level, as a member of a nation state. For many people, however, in daily life documentation is most vital in the domestic realm when accessing rights and resources which could be reserved for nationals or simply depend on proof of legal personhood in the public or private sectors. Thus documentation that affirms nationality can be vital in explaining both how nationality is recognised by the state and how nationality is experienced in practice.

Attending to the role of documentation has meaningful inferences for how we approach ‘being at risk of statelessness’ as a category as well as the specific situation of Chinese denied the hukou. Yet the assumption that obtaining documentation will, in the absence of broader political changes, remedy the situation of those at risk of statelessness can be problematic. Risk of statelessness is almost always embedded in multifaceted situations requiring complex solutions including situations of discrimination, punishment, or poor infrastructure. The consequences of lacking documentation are not limited to issues with attesting nationality.

A story that came to my attention later in my fieldwork elucidates this point. A colleague in China informed me that since 2014 some children in smaller Chinese cities have been able to register with the hukou without paying the administrative fines for out of plan birth. I wondered how this could be so and subsequently learnt that it was a tactic to ensure parents could not circumvent payment of fines. The parents’ names would be disclosed to the Population and Family Planning Department and used to track down those who had not paid. People who refused to pay could be detained for 15 days, taken to court, have their assets frozen, or have money taken from their bank accounts. They could be harassed until they paid. Unsurprisingly many parents decided to willingly postpone obtaining the hukou for their children rather than open themselves to these risks. Thus documentation denial must be contextualised. In some cases, documentation has a price that persons are unwilling or unable to bear.

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