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EXECUTIVE SUMMARY
I. Introduction
The massive rural-to-urban migrations that have occurred in China during the reform era have led some commentators to claim that the residence registration (hukou) system is no longer operational. The corollary of this is the idea that migrants who settle in China's cities will be eligible for the same benefits and entitlements as urban residents.
In fact, the hukou system, under which individuals and families are tied to a particular place and divided into urban or rural categories, remains the key to understanding the institutionalized exclusion that keeps the rural poor out of China's cities. Although the Chinese government began to announce "reforms" of the hukou system in the mid-1990s, these were not aimed at ending the controls on migration instituted in the first years of the PRC or at the eventual elimination of the hukou system. Instead, they have constructed complex new barriers to migrants' entry into the cities and a web of discriminatory rules that effectively put them in a similar situation to "guest workers" or illegal immigrants in rich countries.
The authorities have never ceased their efforts to control migration. The clearest evidence of the authorities' insistence on shutting the poorest out of China's major cities is the rapid growth of detention under Custody and Repatriation, which has more than tripled over the space of a decade, reaching over 3.2 million instances of detention in the year 2000. Official sources indicate that the "vast majority" of detainees are internal migrants, particularly those from rural areas.
However, the hukou system is merely the means to enforcing divisions created by inequitable and discriminatory investment and development policies. The continuing control of migration reflects the enormous gulf between countryside and city, a major factor in China achieving the dubious distinction of now being among the most unequal societies in the world. By shutting the poorest out of the centers of power, it allows the authorities to continue to ignore their plight with relative impunity.
The focus of this report is the legal status of internal migrants in four of China's major cities, Beijing, Shanghai, Guangzhou and Shenzhen. It describes the discriminatory laws and policies that make internal migrants into second class citizens, essentially leaving 10 to 20 percent of the poorest residents of these cities virtually without rights. Since the poorest and most vulnerable among the rural-to-urban migrants are least able to circumvent the mechanisms of control, due to their lack of money and influence, and are most likely to be subject to official and popular discrimination, their experience is the report's principal subject matter.
II. Background
Soon after 1949, the People Republic of China (PRC) moved to adopt rapid industrialization policies that privileged urban development over rural, policies that relied heavily for investment on extracting surplus from agriculture to pay for urban construction and development.
This policy of uneven development was supported through controls on population movement under the hukou system. Bolstered by urban food rationing, state-ownership of housing and controls on employment and travel, this system brought self-initiated labor migration within China to a virtual halt until the early 1980s. The hukou system divided all Chinese citizens into two categories, urban and rural, and fixed them to a particular place of residence. Over time, this system created a rigid social hierarchy that was transmitted across generations, assigning very different entitlements to urban and rural residents.
Since the 1980s, population movement from the countryside to China's cities has drastically increased. The end of the collective farming system and the dismantling of food rationing and other structures that maintained the hukou system have necessitated the adoption of more flexible policies on rural-urban migration. Nevertheless, the hukou system continues to impose differential opportunities based on inherited status, and is one of the key factors that exacerbates the growing inequality maintained by the deep rural-urban divide. One measure of the value still accorded to urban residency is the prices ruralites have been willing to pay for an urban hukou.
In response to population pressure and lack of employment opportunities in the countryside-which to a large extent can be attributed to biased development policies-the state has moved to encourage a form of second-class urbanization in the rural areas under the "small towns policy." Under this policy, urbanization is supposed to occur without the levels of state investment that have created cities such as Beijing, Shanghai, Guangzhou and Shenzhen.
III. How Many Migrants?
Work opportunities in the cities and shortage of rural employment attracted a massive "floating population" estimated to number up to 120 million at its peak in 1993-1994, although some commentators believe it has risen even higher at some points. Rural-to-urban migration had been steadily rising since the 1980s, and increased massively following the boom in construction and manufacturing after Deng Xiaoping's "Southern Tour" of 1992. Numbers have now fallen, however, with some estimating that by the end of the 1990s, the number of migrants had fallen by more than 50 percent from its peak.
A more specific picture of the level of migration can be garnered by examining statistics from some of the country's major cities, many of which now have migrant communities of between 10 and 30 percent of their total populations. Beijing, Shanghai and Guangzhou now have migrant populations estimated at over three million each, while Shenzhen's migrant population could be as high as six million.
However, the precise numbers of internal migrants are almost impossible to obtain. Many municipal statistics on migrants count only documented migrants who have obtained the documents to allow them to work and live in the city legally.
Evidence from the four cities clear shows that the authorities make a major effort to keep numbers of migrants down. Another point highlighted by the municipal figures is that authorities are clearly refusing to allow migrants to settle in these cities, since the numbers of "residents" remain relatively stable from year to year.
IV. Towards a New System: Maintaining the Temporary Status of Migrant Workers
Beginning in the early to mid-1990s, in an attempt to erect new structures of control so as to create an "orderly flow" of migrants, national and local authorities began to issue a series of policies and regulations, and set up a variety of joint institutions to cope with migrant populations in the country's cities. A central concern of this policy shift has been exerting control over migrants' fertility, which was the subject of some of the first regulations enacted.
The regulatory frameworks, which emerged place by place at first but were eventually adopted on the national level, share a tendency towards complicated certification procedures, set quotas for migrant workers and punishments for violations. At their heart lay the ongoing policy of preventing migrants from changing their hukou registration, consigning them to the status of "temporary residents" who could not settle permanently in the city, however long they had lived there.
These systems of control do not merely seek to regulate the entrance of migrants to cities, but impose a set of discriminatory controls over their employment, health, fertility, education and housing. Over the course of the last decade, the authorities have issued a bewildering array of new regulations at the national, provincial and local level that deal with all these matters. Overall, the policies that have emerged aim to attract "high quality" migrants to cities, while shutting out and expelling poor and disadvantaged migrants through "clean up" campaigns that often involve extensive violence, including arbitrary detention under C&R and forced evictions.
V. The Regulatory Regimes: National and Local
There is a plethora of regulations regarding and related to migrants and migration in China, covering an enormous range of issues. The selection of regulations reviewed in this report sketch out the bare bones of the permit system. They are of four main types: overall temporary residence schemes; work permits, and to a limited extent, business licenses issued to migrants; controls over rental of property to migrants; and rules on planned reproduction.
Under the 1995 Measures on Application for and Issuance of Temporary Residence Permits, anyone over the age of 16 who is away from the place where his or her hukou is registered for more than one month must apply to the local Public Security Bureau (PSB) for a temporary residence permit. Migrants who do not have the permit cannot get a work permit or a business license, and work units and individual employers are barred from hiring any temporary resident who does not have a permit. Temporary residents who fail to register, or their employers, can face fines.
The 1994 Provisional Regulations for the Management of the Inter-provincial Movement of Rural Laborers for Employment set out procedures for recruiting and employing laborers to work in provinces, administrative regions, or directly administered cities other that those where their hukou is registered. Before they leave their home areas, rural residents are supposed to register with their local labor recruitment service organ to obtain a "registration card for personnel leaving the area for work." Once they arrive in the area where they will be working, they must obtain a "work permit for personnel coming from outside" from the local labor department. The registration card and work permit are together referred to as a "migrant employment permit." The regulations impose a range of restrictions on employers who wish to hire migrant workers.
The 1994 Rules on the Management of Security in the Leasing of Accommodations contain several provisions that deal specifically with migrants. However, the rules do not impose any specific requirements or restrictions on migrants. Rather, they focus primarily on the "security responsibilities" of landlords, which include ensuring that their tenants have temporary residence permits, and that they are complying with planned reproduction rules. They also heighten police monitoring of migrants by requiring landlords to report to public security organs regarding their tenants' behavior.
In one of the first of the national regulations in the new regime for the control of migrants, in 1991 the State Family Planning Commission issued the Measures for Managing Planned Reproduction Among Migrants in order to "strengthen control" over migrants' fertility and "effectively control population growth." The Measures place responsibility for ensuring that migrants comply with planned reproduction policies on the governments of both their place of origin and current residence. They also bring migrants under the target management responsibility system, which means that officials in receiving areas are directly responsible for ensuring their compliance with the policies. In addition, a range of other administrative agencies are ordered to cooperate with local planned reproduction agencies in implementing the measures.
Beijing
The sheer volume and complexity of regulations aimed at the control of migrants passed by the Beijing municipality is one measure of the high priority that is put on this effort in the capital. Another indication of the importance Beijing attaches to this work is the adoption of various target management responsibility systems and security contracts that make officials and non-official parties dealing with migrants personally responsible for achieving results set by the municipal government.
For the migrants themselves, the number of regulations they must follow, and the need for cooperation of various official and private actors in completing all the required procedures, clearly makes full compliance very difficult-and undoubtedly expensive.
The rules on renting housing to migrants in Beijing impose extremely onerous responsibilities on landlords, and must make it very difficult and costly for migrants to find suitable accommodation in the city.
Shanghai
Like other cities, Shanghai has passed a slew of regulations to control migrants. In many ways, regulation of migrants is stricter in Shanghai than in other cities, for example in requiring all migrants to undergo health checks, and in its enforcement of the linkage between permits from migrants' home areas and being able to obtain legal status to live and work in the city. As mentioned above, Shanghai has pioneered a model of migration control in which high-status migrants are welcomed while the poor and unskilled are kept firmly out.
The Shanghai regulations provide more explicit guarantees for the rights of migrants in the city than some other cities. However, they view migrants primarily as potential threats to the order and image of the city, envisaging an extensive network of controls in which government agencies work together to restrict the number of migrants and prevent them from having a negative impact.
The restrictive nature of the Shanghai regulatory regime falls most heavily on women migrants, who are subject to strict and comprehensive controls aimed at ensuring they comply with regulations governing planned reproduction.
Guangdong Province
Since they are not "directly administered cities" with the status of provinces, as are Beijing and Shanghai, Guangzhou and Shenzhen are covered by the regulatory regimes enacted to cover the whole of Guangdong Province.
The Guangdong rules are notable for the severity of the fines that those who infringe their provisions may incur, whether migrants, employers or landlords. The fines are substantially higher than those stipulated in the national rules and in rules from other cities covered in this report. Given the fact that Guangdong, more than anywhere, appears to have relied on collecting fees and fines from migrants to cover the cost of controlling them, this is hardly surprising.
Unlike other areas, the Guangdong regulations do make provisions for long-time temporary residents to settle in the province, provided they have employment and housing.
Provincial regulations on planned reproduction are notable for their severity and the high fines that may be levied. They also state that any contract entered into by a migrant who is in violation of the planned reproduction regulations may be considered void.
In Guangzhou, a notable development is regulations for the use of a "smart card" containing a computer chip in the place of the old temporary residence card. Holders of this card have no right to access or correct the data it contains.
The regulatory system in Shenzhen is characterized by requiring a veritable mountain of paperwork to be completed (and substantial fees to be paid) before any migrant can acquire legal status in the city. Shenzhen also adds to the already lengthy list of fines that can be collected.
VI. Impact of the Policies and Regulatory Schemes
A significant number of migrants live in a tenuous quasi-illegal state parallel to that of undocumented immigrants to other countries. The bewildering number and complexity of rules on the books related to migrants, the resulting lack of transparency, and the "illegal" status imposed on many migrants by their inability to comply with certificate and permit schemes make them easy targets for any agency or official empowered to offer a service, levy a fee or collect a fine.
In addition, those caught by the public security in a state of "three withouts," that is with no legal certificates, proper profession, or fixed living place, are often detained in C&R centers.
Official portrayals of migrants as blind drifters, sources of crime and instability, "guerillas" who ignore the planned reproduction policies and the primary reasons for over-stretched city services is not only discriminatory in itself, but also promotes popular bias against migrants, and seeks to enlist urban residents in exerting surveillance over them.
Given these policies, regulations and attitudes, and the lack of remedies available to migrants who have suffered from abuses, it is hardly surprising that living conditions for migrants are often precarious, and that they are regularly subject to violence, intimidation and human rights violations perpetrated both by officials and by private actors.
In particular, migrants' quasi-illegal status makes them highly susceptible to abuse by employers, as they are less likely to complain about low wages, long hours and poor working conditions. In some cases, this has reached extreme conditions, with some migrants actually subject to slavery-like conditions.
Evidence from Guangzhou shows that strict controls on migrants' fertility has exacted a terrible toll on women in the city, with migrant women accounting for over three quarters of maternal deaths in the city in 2000. This points to a much wider problem of lack of access to proper medical care among all migrants.
VII. Lack of Remedies to Fight Against Discrimination and Abuse
Migrants who have suffered violations of their rights, including discrimination, at the hands of public or private actors in the cities have few effective remedies. Apart from in the area of labor rights, where some legal protections do exist, in the main, any putative protection of the rights of migrants is entirely administrative in nature.
As "outsiders" in the cities, migrants have little in the way of effective social support networks, and independent trade unions or NGOs that might provide assistance to migrants are illegal in China. Migrants' outsider status means that even when their legally-protected rights are violated, city agencies are often unwilling to enforce laws that might provide them with redress. In addition, those migrants who do not hold the relevant permits for the city where they are living are likely to face C&R if they try to complain about abuses of their rights.
Most of the information that comes out about the abuses migrants face at work is testimony to the efforts they have taken to make these known. The process of exposing these and other types of violations of migrants' rights has relied on a number of concerned journalists, who have been willing to take significant risks to cover such stories and report them, as well as the efforts of activists and even some sympathetic officials.
VIII. The Situation of Internal Migrants Under International Human Rights Standards
As a member of the community of nations and having ratified five of the major international human rights treaties, China has agreed not only to uphold fundamental human rights but to take active steps to promote and ensure that those rights are realized. As described in this report, China has failed to ensure that the rights promised under these international treaties have materialized for the large number of its citizens who have become internal migrants.
The discriminatory treatment of internal migrants from rural areas under China's hukou system constitutes a violation of international norms prohibiting discrimination. The system creates status-based restrictions for a wide range of human rights, ostensibly to manage the adverse effects of China's development policies which involve the deliberate and systematic underdevelopment of rural areas. Such policies are the root cause of much internal migration and are incompatible with the right to development, which requires that national polices should be based on "fair distribution of the benefits of development" and "equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income."
Moreover, the economic injustice and marginalization of rural residents resulting from abuses associated with the hukou system constitute systematic violations of their economic and social rights, and are inconsistent with international standards for the protection of internally displaced persons. The permit schemes that seek to control and limit internal migration are not only discriminatory and an encouragement to popular prejudice against migrants, but also result in violations of specific rights by officials and private actors, including employers and landlords. Migrants are deprived of the right to freedom of movement; the right to adequate housing, including the freedom from forced eviction; the right to work without interference from the authorities; reproductive rights; and the essential right to an effective means of redress for rights abuses.
It is the responsibility of the international community to hold China accountable for these violations of rights and for its failure to take steps to promote effective realization of those rights. The international community? including the United Nations and multilateral financial institutions?!?ould ensure that any development aid or other assistance provided to China is used by the government in a manner consistent with human rights norms.
IX. Recommendations
As HRIC has documented in this report, in relation to labor migration "gradual reform" of the hukou system has merely led to the creation of new status hierarchies and has contributed to massive violations of human rights, including systematic violence, against internal migrants.
HRIC presents a series of recommendations to the Chinese government on measures to address the human rights abuses documented in this report. The recommendations can be summarized under the following seven main headings:
We also include a number of recommendations to international actors, including foreign governments, the United Nations and international aid donors working in China, urging that they:
HRIC believes that the only solution to the iniquitous, systematic discrimination associated with the unequal development policies enforced through the hukou system is the abolition of the rural/urban distinction, combining real freedom of movement and measures to address the rural-urban divide.
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This report was made possible by the support of the UK Foreign and Commonwealth Office Human Rights Project Fund
