One of Order 841’s three exit-ban grounds specifies no duration

A State Council regulation in force since 15 September sets out three grounds on which Chinese citizens may be barred from leaving China. Two carry a stated maximum of three years. The third — a breach of export-control or technology transfer rules that may endanger national industrial or technological security — specifies no period at all, and the statutory clause it sits inside has carried none since 2013.

The power is older than the regulation

Order 841 did not create the power to stop a Chinese citizen leaving. Article 12 of the Exit and Entry Administration Law, in force since July 2013, lists six grounds. The fifth is a general clause: exit is barred where a person may endanger national security and interests and a relevant State Council department so decides. That clause specifies no time limit. The sixth admits further grounds set by laws and administrative regulations.

The instrument now in force is the Regulations of the State Council on Exit and Entry Administration, issued as Order No. 841 — an administrative regulation made by the State Council alone, ranking below a statute of the National People’s Congress, and made under the Exit and Entry Administration Law. Article 12(6) is therefore the opening through which its Article 4 operates.

Experts writing in a commentary published by the National Immigration Administration read the export-control ground as sitting inside the pre-existing Article 12(5) general clause rather than beside it: unlawful outflow of technology, non-compliant export of dual-use items and the transfer of key industrial technology abroad are, in their account, a specification of endangering national security and interests. They name the two instruments the ground points at — the Export Control Law and the Regulations on the Administration of Technology Import and Export. Order 841 itself names neither.

What is new on 15 September is that the category is written down in an administrative regulation, with the commerce department named as a body that can decide.

What Article 4 says

Article 4 has three paragraphs. Each sets out a distinct ground and identifies who may decide.

The first reaches a citizen who has been given administrative detention for fraudulently obtaining an exit or entry document, or for leaving or entering the country unlawfully. The migration administration authorities may bar that person from leaving for between six months and three years, running from the day the penalty is served. The decision is discretionary, to be made on the circumstances of the breach and the need to prevent further offending.

The second reaches a citizen who has carried on unlawful or criminal activity outside China in a way that harms national security and interests. The decision belongs either to the relevant State Council departments or, once a diplomatic mission has verified the position, to the provincial-level government of the place where the person is domiciled in China. The bar runs for six months to three years from the day the person returns to China.

The third reaches a citizen who breaches export-control rules, technology import and export rules and the like, where the breach may endanger national industrial security or technological security. The commerce department of the State Council and other relevant departments may decide to bar that person from leaving.

Article 4 specifies no duration for the third ground

The phrase “six months to three years” appears twice in Article 4. It governs the first paragraph and the second. The third paragraph contains no period, and no point from which a period would run.

The Order does not define national industrial security or technological security, and prescribes no criteria or procedure for assessing either.

When the person is told, and when they are not

Article 6 requires the deciding body to notify the migration authorities so that a ban can be enforced, and to inform the person in writing of the fact of the ban, the reasons for it, the legal basis and the avenues of redress. The duty to inform then falls away where the case may affect national security, the investigation of a criminal case, and the like — an open list, not a closed one. In those cases the person need not be told. Where the border authorities enforce a ban, Article 6 confines what they say to the content of the deciding body’s notice.

The Order names avenues of redress without specifying any. It sets no period for challenging a decision and does not say which body a challenge goes to. The general administrative review and litigation statutes were not read for this article, so nothing here describes what redress exists outside this Order.

What a second passport does not reach

Article 12 of the Law bars the exit of a Chinese citizen. The ground attaches to the person’s nationality rather than to the document presented at the border, and Article 11 requires every Chinese citizen leaving the country to be inspected and permitted before they go.

Acquiring another nationality does not by itself end Chinese nationality. The Nationality Law does not recognise dual nationality for Chinese citizens, but automatic loss under its Article 9 requires two conditions together: the person must be settled abroad, and must have acquired the foreign nationality voluntarily. Otherwise nationality is surrendered only on application, approved by the Ministry of Public Security. State functionaries and serving military personnel may not surrender it at all.

Two of the six statutory grounds predate all of this. Article 12(2) bars exit where a criminal sentence is unserved, or where the person is a defendant or a suspect in a criminal case. Article 12(3) bars it where a civil case is unresolved and a court so decides.

What the text does not describe

None of this describes how the provisions are being applied. A regulation states a rule; no official source read for this article gives figures for bans issued or cases brought. What the text establishes is where the decision now sits: for a breach of export-control or technology transfer rules that may endanger industrial or technological security, the commerce department is named as a body that may bar the person’s exit, and the instrument sets no date on which that bar would lift.