Monday, May 12, 2008


Andrew Lillis
Lehman, Lee & Xu

Silent until this week on the extent of visa changes that have left hundreds of thousands of foreigners living in China scrambling, the Chinese Foreign Ministry spokesman, Qin Gang officially confirmed that China had made changes to its policy to “Safeguard national Security”.

China has been the target of three events in the past 8 weeks which have given officials cause for alarm and which have largely escaped international media attention; the attempted hijacking of a China Southern Airlines aircraft in the Western region of Xinjiang, the hijacking of a bus in the central Chinese city of Xi’an in which two of the hijackers were shot dead and a suspected act of arson on a bus during rush hour in Shanghai in which three passengers died. Add to this the Olympic torch protests and the recent protests in Tibet it is not difficult to see why China would want to tighten visa restrictions in order to better examine who is entering the country in the run up to the Olympic Games; a traditional target for terrorist attacks. This is especially the case with the head of Interpol, Ronald Noble, stating in April that a terrorist attack at the Beijing Olympics was a “real possibility”.

"We have made some arrangements according to the practice of the past Olympics and usual international practice. That is, in the approval process we are more strict and more serious with the procedure," Foreign Ministry spokesman Qin Gang said. These new restrictions include establishing real time checks at China’s entry ports of travel documents against a database of some fourteen million lost and stolen passports.

What this translates to on the ground in China from an immigration point of view is new restrictions on foreigners – a significant proportion of foreigners resident in China will leave by July 1st due to their inability to extend their current status. The only possibility for many foreigners currently is to apply for a residence permit linked to a working visa; the requirements for which have got stricter in recent months; the legitimacy of the company involved is scrutinized and matters such as years of operation, registered capital and genuine need for foreign workers are examined. This is largely to prevent bogus enterprises from issuing work permits.

One group for which this has a major impact are those students pursuing internships in China – many multinationals have long established Summer intern programs which now must be curtailed because the traditional visa used for those on internships, the “F” visa, is now issued for non-extendable periods of 30 days and all applications must be accompanied by roundtrip tickets and hotel bookings for each night of the proposed stay. Previously the validity period was up to two years with no requirement for either air tickets or hotel bookings.

With the Olympic Games less than three months away we can expect to see further tightening of visa regulations, particularly from July 1st when the official “Olympic Period” begins.


Andrew Lillis
Lehman, Lee & Xu

In 2004 China officially began issuing permanent resident cards, known colloquially as Green Cards, to foreigners who meet certain criteria. In spite of the name though there are fundamental difference between China’s Green card and “Green Cards” in other countries such as the United States and Ireland. The main aim is the same; to allow non citizens to reside permanently in the country and enjoy similar rights to citizens though the means of acquiring a green card is somewhat different.

Fundamentally Chinese is not known as a country of immigrants and its immigration laws did not allow foreigners to reside permanently in the country until 1986 when the National People’s Congress adopted the Law of the People’s Republic of China on the Entry an Exit of Foreigners. China however is changing and record numbers of foreigners, attracted by China’s rapid economic growth and potential business, are settling in China. This influx of foreigners was the catalyst for the introduction of China’s own Green Card system; with the dual goal of attracting foreign talent to China and giving recognition to those already here who make significant contributions to the country’s success.

In spite of the large numbers of expatriates in China (recently the number of foreigners with resident permits in China was estimated at 250,000) only 649 “green cards” were issued in the first twelve months of the scheme’s operation. Compare this to the United States where each year approximately 1,000,000 green cards are issued. One of the main issues for the disparity is the relatively narrow scope of the regulations. Under the law, enacted in 2004, Green Cards are available to those who fall within one of four categories;

1. Be a high-level foreign expert holding a post which promotes China's economic, scientific and technological development, or social progress.

High level expert is defined as those “having assumed the posts of deputy general manager or deputy director of plants or higher level posts or posts of associate professors or associate research fellows and similar posts for more than four years in a row” meaning this is reserved for those holding high level jobs in their respective enterprises and high level academics. It is somewhat narrow; the foreign manager of a PR firm, for example, would not be entitled to the status as such jobs are not within the scope of the regulations.

2. Have made outstanding contributions of special importance to China

This category is reserved for exceptional individuals and in practice is rarely used.

3. Have made a large direct investment ranging from US$ 500,000 to $2,000,000 in China

The applicant under this heading must have resided in China continually for 3 years and have invested one of the following amounts

a. $500,000 if the investment is in an “encouraged” field or if the investment is in one of the less developed western regions of China.
b. $1,000,000 if the investment is in the central region of the country.
c. $2,000,000 if the investment is elsewhere in the coastal regions of China.

4. Have come to China to join family members such as spouse, dependent minors or senior citizens.

This applies to both the dependents of those foreigners granted a green card and certain dependents of Chinese nationals. In order for the foreign spouse of a Chinese national to apply they must first reside in China for at least nine months every year for five years. For the parents of a Chinese national to apply they must be dependent on the Chinese national, be over the age of 60 and intend to reside in China for more than nine months each year.

Once granted the Green Card holder enjoys the same rights as Chinese citizens with two exceptions; they cannot participate in elections and they cannot serve in the armed forces. They do however enjoy educational benefits for their children, the ability to buy property, establish a business and the ability to enter and exit China without the need for a visa. Furthermore holders retain the benefits accorded to foreigners in China, such as preferential tax status. The validity of a green card is 10 years after which there is a routine renewal process.

More information can be found at on the website of the Beijing municipal government

Wednesday, May 7, 2008


Carolina Garutti and Daniela Lima

Former wording of Article 12, item I, indent "c" of the Federal Constitution - Persons born abroad, with Brazilian parents are Brazilian, provided they come to reside in the Federative Republic of Brazil and choose, anytime, the Brazilian nationality”;

Constitutional Amendment no. 54 dated 09/20/2007

Current wording of Article 12, item I, indent "c" of the Federal Constitution - Persons born abroad, with Brazilian parents are Brazilian, provided they are registered in a competent Brazilian office or come to reside in the Federative Republic of Brazil and choose, anytime after becoming of age, the Brazilian nationality”;

Article 95 of the Transitory Constitutional Provisions – “Persons born abroad between June 07, 1994 and the date of the enactment of this Constitutional Amendment (09/21/2007), from Brazilian parents, may be registered in a competent Brazilian consular or diplomatic office or registration office, if they come to reside in the Federative Republic of Brazil”.

In view of the above, we note that before the publication of the Constitutional Amendment no. 54, for children of Brazilians residing abroad (jus sanguinis) to acquire the Brazilian nationality, they had (i) to reside in the Federative Republic of Brazil and (ii) choose, anytime, the Brazilian nationality before the Brazilian Federal Justice.

These requirements created many factual and judicial problems for the children of Brazilians intending to obtain Brazilian nationality, taking into consideration that the majority of them, born abroad, had no means of evidencing “residence” in Brazilian territory, depending, sometimes, on the address of parents, uncles/aunts, friends to obtain water bills, light bills and prove such “residence” in the Brazilian Federal Justice.

Please note that, in order to comply with these provisions there was a problem arising by reason of the applicant’s stay in Brazilian territory, since such persons entered Brazil as foreigners. If they had no labor, student or permanent visa as a consequence of marriage or Brazilian children, they had to remain in our country for the maximum term of 180 days per year.

In order to secure Brazilian citizenship such persons had to hire lawyers and many had no money to finance the judicial process.

I would like to leave here a small criticism to the Judicial Power, since several times I had suits on nationality choice where advanced protection was requested (article 273 of the Civil Proceedings Code), taking into consideration that my clients needed such concession to be able to remain and work in Brazil as Brazilians and in spite of our request, the Judicial Power only granted protection upon the judgment of the sentence (more or less after eight (8) months), sometimes allowing such people to stay irregularly in our country.

I believe such people suffered negative experiences which could be avoided had the Federal Judges of our country been a little more sensitive.

After the Constitutional Amendment, with the change of article 12, item I, indent “c” of our Constitution and with the enactment of article 95 of the Transitory Constitutional Provisions Act, it is noted that, in order for Children of Brazilians born abroad (jus sanguinis) to acquire Brazilian nationality, they must (i) be registered in a competent Brazilian office (Embassies, Consulates) or (ii) choose, anytime, after becoming of age, Brazilian nationality before the Brazilian Federal Justice.

Therefore, the adding conjunction “e" was substituted by the alternative conjunction “or”, which created the alternative (a) of the parents (active subject) of such people registering their children with the Brazilian Consulates and Embassies abroad or (b) the interested parties, themselves (active subject) after coming of age, to request Brazilian nationality before the Brazilian Federal Justice. By adopting either choice, such people will acquire Brazilian nationality.

We emphasize that alternative (a) above, may be exercised by the parents (active subject) until such time when their children reach twelve (12) years of age, because after such condition this registration is no longer accepted by the competent Brazilian offices, as per Book l, Chapter 4, Section 4, article 4.4.1. Therefore, if registration is not affected prior to age 12, the interested party itself will have the option of requesting Brazilian nationality as was the case before the enactment of the Constitutional Amendment no. 54 published on 09/21/2007, i.e., direct request thereby to the Brazilian Federal Justice.

In face of the above, we inquire: what treatment will be given to people born abroad who were not registered by their parents before reaching twelve (12) years of age and who are still minors (under 18 years of age) ? That is, during this period of time, if they reside abroad, may they obtain Brazilian passport to travel to Brazil as Brazilians? I believe yes, and if they are in Brazil, will they be able to obtain a temporary Brazilian Identification Card (RG) to live in Brazil, until such time when they become of age and apply for the Brazilian nationality? I also believe the answer to be yes.

Another issue to be analyzed is article 95 of the Transitory Constitutional Provisions Act, since I have no doubt that people born abroad between June 07, 1994 and September 21, 2007 will acquire the Brazilian nationality if (I) they are registered in a Brazilian Diplomatic Office or Consulate, thus creating an exception to the rule that such registration must occur prior to such time as the child reaches twelve (12) years of age, or (II) in a Brazilian Registrar, if they come to reside in the Federative Republic of Brazil, without having to apply to the Federal Justice in our country.

However, I continue to have doubts about the treatment likely to be given to people born abroad before 1994 and who have not yet applied for the Brazilian nationality, since, if they were registered in a Brazilian diplomatic office or consulate, have they immediately acquired Brazilian nationality with the enactment of the Constitutional Amendment no. 54? (previously, they had to apply for the nationality option before the Federal Justice) I believe yes. And those people which were not registered with a Brazilian diplomatic office or Consulate and are not yet of age (from 1990 to 1993), will they be able to obtain temporary Brazilian passports until they become of age or obtain a temporary Brazilian Identity (RG)? I believe yes. Finally, what about people born before 1990, will they have the sole choice of applying for the Brazilian nationality before the Brazilian Federal Justice? I also believe the answer to be yes.

I would also like to emphasize that the expression nationality “option” is technically totally wrong, and should be substituted with the term “request to exercise” Brazilian nationality, considering that such people, born abroad, are entitled to be Brazilians as of their birth (original nationality). Therefore, when they acquire Brazilian nationality they do not make any choice, they only exercise a right, since they do not loose their nationality of origin. For example, if the person was Japanese, by exercising Brazilian nationality he or she becomes Japanese and Brazilian (double nationality) the same thing happening to other nationalities.

Conclusion: I believe that the enactment of this Amendment is a very positive development affecting the lives of many people living abroad. It also clarifies many doubts previously existing on the matter, particularly in Brazilian Consulates and Embassies, as well as in the Brazilian Federal Judicial Power itself. However, I believe it could be more technical in the sense of not leaving so many doubts on its interpretation.

CAROLINA GARUTTI AND DANIELA LIMA are lawyers and partners of EMDOC MRS, a 20-years company, specialized in rendering services in the immigration market, transferring employees to Brazil and from Brazil to other countries.

Monday, May 5, 2008


Jelle Kroes
Everaert Immigration Lawyers

The jurisprudence of the Dutch State Council is tainted with bias and formalism, at the expense of the fundamental rights of immigrants, in particular asylum seekers. This is the conclusion of a survey undertaken by Mr. Kees Groenendijk, retiring Professor at Nijmegen University.

Mr. Groenendijk's impressive retiring speech on 25 April 2008 contained part of the survey and immediately raised the debate on the controversial case law of the State Council's judiciairy department (the Afdeling rechtspraak of the Raad van State). Most national newspapers commented sharply. More importantly, the Labor party (PvdA) have called for an intervention from the Minister of Justice, followed by a public hearing, appeals supported by most parliamentary parties.

Mr. Groenendijk and his successor Mrs. Ashley Terlouw interviewed 24 immigration judges working at the District courts on a no-name basis. A number of the interviewees admitted to be in moral conflict with themselves. Some regret to not have stood up more clearly against the State Council. Their main concern is the strict line in the State Council's case law in which the facts of the case rarely seem to make a difference, and formal arguments appear to be decisive. The statistics are indeed remarkable. In 90% of the cases, the appeal turns out negatively for the asylum seeker. In only 4% of the cases the State Council sees a point in arranging a court hearing, the rest is decided purely on the basis of the file. In other administrative cases the number of court hearings is 84%.

The report of the survey is published under the title "A vicious process" (Een venijnig proces). The controvery is not new. Since 2001, District Court judgements can be appealed against with the State Council. Until then, District courts ruled in first and final instance. Soon after the first appeal judgements came through, allegations of bias and excessive formalism were expressed by lecturers and practitioners on a wide scale. However, the State Council continued its strict line. This time the debate has reached a political level, and it seems likely that fundemental changes to the system of legal remedies can no longer be avoided.

Amsterdam, 2 May 2008