Why wasn’t my residence permit renewed?

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Perhaps I know best why it is man alone who laughs; he alone suffers so deeply that he had to invent laughter.

    -  Friedrich Nietzsche

One must imagine Sisyphus happy.

    - Albert Camus

Sometimes “memes” really are funny. They can capture the spirit of a moment in a glance and unlike jokes there is no timing to get wrong. The meme of this moment and the last few months features a hapless foreigner talking to a Chinese immigration officer across a desk. The foreigner asks about extending his time in China and is told by the officer that he has to leave in 30 days. The foreigner responds by telling the officer that he has a wife and children here in China, and the officer responds “Not anymore.”

Part of what makes memes (and jokes) funny is that they touch on at least a kernel of truth, often an unpleasant truth, and it is with that laughter that truth is easier to face. That bit of wisdom is likely shared by our hapless foreigner in the meme and that most mustachioed and misunderstood philosopher in the first epigraph.

In the last few months more and more foreigners working in China, some who have been for many years, have found themselves, to greater or lesser extents, living that moment in the meme. The disappointment and disbelief that the life they had made in China can suddenly slip away in a moment becoming all to real.

You can, and probably should, take Nietzsche’s advice and laugh at your misfortune because then at least you have the palliative of laughter. Or you take the same advice from Camus and imagine Sisyphus, in other words you and me and everyone, happy, despite or even because of all that absurd business with the boulder and the hill. While Reliant might not be able to fix your situation, we might be able to sate one of those other human, all to human, desires, the will to comprehension that drives us to make sense of even the absurd.

For many, the sudden denial of a document certainly seems absurd. If you had been able to get a residence permit for work (RPw) in past, why are you now refused one now? If you have gotten a work permit (WP) which usually leads to the subsequent issuance of a an RPw, why are things different this time? And what, if anything, can you do about it?

To understand what is happening with RPws now, we need to review a bit about bureaucracy. First, there are two different government bodies that deal with the WP and the RPw. The WP is managed by the what we at Reliant call the Foreign Expert Bureau (FEB), technically the WP approval and cancellations processes are under the Ministry of Science and Technology (MOST) and in many places the FEB will be called the Science and Technology Bureau (科技局) but for the sake of consistency we use FEB. But knowing about the FEB alone is not sufficient, because the FEB does not approve, issue, nor manage the RPw. That is the purview of the Exit and Entry Administration (EEA), a part of the Public Security Bureau (PSB). While the FEB are office workers, the EEA are part of the security apparatus and have the uniforms to show it.

A necessary, but not sufficient, condition for obtaining an RPw is that one have a WP (and the corresponding approval document, the 准予行政许可决定书). And here is where many people have become confused. Reliant has recently seen many cases in which the WP was issued by the FEB, but the EEA then refused to issue the RPw. It is the institutional separation between the FEB and the EEA, ironic as more joint centers open that locate FEB and EEA service windows next to each other to increase convenience for applicants, that means WP approval with RPw denial has always been possible, even if it was rare in past.

In many recent cases, applicants who have been issued WPs are subsequently denied RPws. In most of these cases, it turns out that the applicant had a prior record of administrative punishment, this usually being for illegal employment (Exit and Entry Administration Law of the People’s Republic of China [EEAL] 80) or illegal residence (overstay) (EEAL 78) or a related issue such as failing to update an RP within the ten day limit  (EEAL 33, 76). In some cases, the record was only for a warning, not a fine, but a formal written warning is still an administrative punishment. In many cases, the records of administrative punishment were from years ago, and the applicant had been able to obtain both WP(s) and RPw(s) subsequent to the issuance of the administrative punishment decision but prior to the recent denial of an RPw. Perhaps this is true of the hapless foreigner in the meme who is about to separated from his wife and children.

Technically, the EEA is not supposed to issue RPs to foreigners who are “not eligible to reside in China because of violation of relevant Chinese laws or administrative regulations” (EEAL 31.4; RAEEF 21.3). Offenses like working or residing in China illegally are violations of the EEAL and the Regulations of the People’s Republic of China on Administration of the Entry and Exit of Foreigners (RAEEF), and those are both the most relevant law and administrative regulation when it comes to matters of foreign stay and  residence in China, and the most relevant law and regulation for the EEA as an organization. So it is best to understand that prior to the present crackdown, the EEA had been very lenient about enforcing its obligation to not issue residence permits, perhaps looking the other way for many people who technically should not have been issued RPs. This tolerant and generous attitude went into overdrive during the pandemic with the 60 day automatic extension policy and the issuance of multiple consecutive stay permits, often for up to a year or more in cumulative duration.

Now it appears the pendulum has swung back and we are in a period of strict enforcement. Part of this might be a reaction to the period of leniency during the height of the pandemic. It may have to due with the imposition of the Dual Reduction reforms in the education sector where many foreigners are employed. It may be related to the upcoming Winter Olympics and even other major events in 2022. It could even be the result of technology upgrades at the EEA. Since there is no public announcement of a stricter enforcement regime, nor will there be one, understanding the why is ultimately speculation, no better than tea leaf reading. What can be explained, as above, is the mechanics of how one might suddenly be denied an RPw for something that happened years ago, and after which one has gotten other RPws, or how one could be a approved for a WP but not for the RPw based on that WP, making the WP alone pretty much useless.

Admittedly knowing the how and not the why is little comfort, but even knowing the why would not allow us to change things, at least not the things that have already happened. The lesson moving forward is twofold. One, pay close attention to the legality of your employment and residence situation. If an employer proposes something that screams obvious illegality - like the common “this contract is just to show the government to get the visa” - do not be a part of it as it may catch up with you, even years later, in unexpected ways.  

Two is where we come full circle back to our hapless foreigner and our continental  philosophers. Laugh and imagine Sisyphus happy.

References

(1) Exit Entry Administration Law of the People’s Republic of China (EEAL)

http://english.www.gov.cn/archive/laws_regulations/2014/09/22/content_281474988553532.htm 

中华人民共和国出境入境管理法

http://www.gov.cn/flfg/2012-06/30/content_2174944.htm 

(2) Regulations of the People’s Republic of China on Administration of the Entry and Exit of Foreigners (RAEEF)

http://english.www.gov.cn/archive/laws_regulations/2014/09/22/content_281474988553545.htm 

中华人民共和国外国人入境出境管理条例

http://www.gov.cn/zwgk/2013-07/22/content_2452453.htm

Reliant Services

Reliant Legal Consulting Ltd. provides solutions for labor disputes, work permit problems, and residence permit, visa, and stay permit issues. Contact us for more information:

WeChat ID:  Reliant-CN 

E-mail: [e-mail]

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