Ultra Vires: The Freewheeling of China's Immigration Administration and Anti-immigration

Recently, the National Immigration Administration (NIA) issued a policy statement that any ethnic Chinese with foreign nationality that holds a doctorate degree may apply for permanent residency in China. The NIA emphasized that this policy is nation-wide and is not limited to any specific locality. The policy does not restrict from which academic institutions or countries the doctorate degrees need to be earned. In fact, the policy is not new. It is one of the "12 convenient policies facilitating immigration and exit and entry" issued in August 2019.

It is not the first time that the NIA ambushed the public with highly controversial immigration policies. In March 2020, the proposed revision of permanent residency regulations led to huge opposition that the government was forced to withdraw the draft amendment. Netizens posted nationalistic comments regarding the issue.

It seems that the NIA has learned its lesson and surpassed it. If amending an existing administrative regulation is unwelcome, why don't we just ignore it and make whatever policy we like. As a result, loosening rules that are in direct conflict with the existing regulation came into place under the disguise of "convenient rules to facilitate immigration" or "pilot policy."

The real problem, is that with the current laws and regulations unchanged, the NIA did not have any legal authority to issue these policies. These policies are ultra vires.

The anger towards the NIA policy is two-folded. The first fold is about its merits. Many concern that it is too easy to get a doctorate degree from some low-quality institutions or diploma mills. The deeper anger is that the NIA just freewheels without any regard to the grant of authority by the legislators or public opinion. It is just blatant violation of administrative and legislation law. There is no democratic channel of communication for people to be heard.

In the real world, however, NIA always prevails. Anyone familiar with current development in the Chinese legal system should realize that these policies will not be successfully challenged.

It will be very unfortunate if an observer arbitrarily attributes all disputes concerning immigration in China as anti-immigration sentiments, nationalism, and racism. These factors are relevant. But it is also about the lack of democratic process control over the government and the most basic cornerstone of rule of law. If an administrative agency could just go wild and beyond its legal authority, why does the legislative branch even exist? It is not (only) about whether Chinese people are for or against immigration. It is about whether Chinese people should have a say on the political process of the state. Many opponents to the policy are not anti-immigration; they are anti-oppression and anti-authoritarianism. They welcome immigration under a democratic system, not immigration imposed on them by a repressive and arrogant government. The NIA tells them that people do not count. Legislators do not count. Laws are no better than a piece of waste paper. They can do whatever they want. If observers fail to understand this and sweepingly classify all opponents as racists and xenophobia, it might turns into a self-fulfilling prophecy. At the end of the day, no one should applaud for a policy that tramples on the basic principles of rule of law and democratic process but nonetheless facilitates immigration.

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