Interpreting “Settled Abroad” in China’s Nationality Law: Theory, Practice, and Problems

Abstract

The globalization of China and active international migration across Chinese borders involving millions of people have made understanding Chinese nationality law an issue of tremendous importance. In recent years, disputes concerning nationality have arisen out of undefined terms in the Nationality Law. At the center is the term “settled abroad,” which impacts the nationality of those who acquire foreign nationality and children born to overseas Chinese citizens. The limited literature and legislative interpretations do not clearly define the term. A thorough analysis shows that “settled abroad” means permanent or long-term residency and generally does not scrutinize the length of the actual residence period except for a complete absence of actual residence or undocumented migration. This Note further examines all publicly available cases disputing nationality in the past seven years to understand the judicial practice. It turns out Chinese courts also refrain from inquiring about the actual residence period in non-criminal cases. In recent years, the sensitive nature of the issue and the discoordination among authorities have prevented amendment or interpretation of the nationality law. This Note makes two key contributions to the literature. First, it provides a much-needed interpretation of the key provisions in Nationality Law that have profound implications for millions of people. In contrast to prior literature, which often lacks sufficient comparison and analysis, this Note addresses all prior discussions in a comprehensive way. Second, it is the first work that applies empirical methods to examine how Chinese courts apply the Nationality Law. Finally, this Note also offers several explanations for the stagnant amendment of the Nationality Law from a policy angle.