Phan-Gillis Case Highlights Deportation of Foreigners in China
Nanning Intermediate People 's Court. Image Credit: GXBaiBang.Com.
The adjudication of the Sandy Phan-Gillis case by the Nanning Intermediate People’s Court has drawn attention to the supplemental punishment of deportation under Chinese law. Ms. Phan-Gillis, a prominent American businesswoman, was convicted of espionage by the court on April 25, 2017. She was sentenced to three and one-half years in prison and deportation. She was deported on April 28 without serving her prison sentence.
Expulsion is one of four supplemental punishments in China’s Criminal Law, the others being deprivation of political rights, fines, and confiscation. Article 35 of the Criminal Law as amended states that expulsion can be a stand-alone punishment or a supplemental punishment. (In common usage, expulsion and deportation are synonymous. They both refer to the compulsory removal of a foreigner from the territory of a sovereign state.)
Deportations of foreigners are carried out in accordance with the Joint Regulations of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of Justice, and the Ministry of Finance Regarding the Implementation of Compulsory Deportation of Foreigners. The regulations were jointly issued on July 31, 1992. Despite being nearly 25 years old, the regulations remained in force as of 2013, according to a Supreme People’s Procuratorate source (see also a 2016 discussion on deportation on a Chinese law firm website). There is no record of the regulations having been amended or replaced.
Although the joint regulations do not mention the role of the State Security Ministry in carrying out deportation of foreigners, the 1993 National Security Law and the Counterespionage Law, passed in 2014, authorize state security bureaus to carry out deportations of foreigners for state security violations and espionage. (The 2015 National Security Law does not mention deportation of foreigners.) Provincial and municipal state security bureaus have issued regulations that deal with deporting foreigners in state security cases (see, for example, the document issued by the Shanghai State Security Bureau that defines the scope of its administrative authority.)
A source in Beijing familiar with the case relates that the deportation of American citizen Xue Feng in 2015 was the first time that the Beijing State Security Bureau had carried out a deportation. More than a dozen officers were involved. Xue was flown back to New York instead of to his home town of Houston. No one from the American Embassy in Beijing could speak to him before he was put on a plane for the United States.
Dui Hua’s translation of the 1992 joint regulations ("deportation regulations") can be found below. The foundation welcomes comments and suggestions for improvement.
Review of Court Judgement Websites
A search of judgements on the Supreme People’s Court Judgement Website yields 34 sentences of deportation of foreigners in criminal cases covering the years 2014-2016. This is not an exhaustive listing of all deportation sentences for foreigners during these years. Several deportation sentences, including that of the Canadian citizen Kevin Garratt, convicted of espionage and deported in September 2016, are not to be found on the website.
Of the 34 deportation sentences found on the court website, five were stand-alone sentences and the rest were supplemental sentences. Three of the five stand-alone deportation sentences handed down by the court of first instance were appealed by the procuratorate, thereby delaying the effective date of judgment and deportation (see Chapter II Article 1 of the deportation regulations.) Two of the sentences were upheld by the court of second instance. The stand-alone deportation sentence for drug trafficking handed down for Nigerian citizen Ukaegbu Kingsley Chinonso by the Hunan Hengyang Intermediate People’s Court on August 20, 2015 was overturned by the Hunan High People’s Court on November 21, 2016. The latter court sentenced Chinonso to 15 years in prison, confiscation of property valued at RMB 50,000, and deportation.
Deportation as a Criminal Penalty in Endangering State Security Cases
Seven citizens of the United States and Canada have been convicted of espionage or state secret crimes, both crimes of endangering state security, since 1995. All were sentenced to be deported.
Of the seven citizens of the United States and Canada convicted of endangering state security and ordered by the court to be deported, one was given a stand-alone deportation sentence, three were sentenced to prison and were deported upon completion of the sentences (including reductions), and three were sentenced to prison and deported without serving the prison sentence. The seven cases, six of which involve naturalized American citizens of ethnic Chinese descent:
Harry Hongda Wu, an American citizen and human rights activist, was detained on June 3, 1995 by officers of the Wuhan Public Security Bureau on suspicion of trafficking in state secrets and fraud. He was convicted by the Wuhan Intermediate People’s Court and given a combined sentence of 15 years in prison and deportation on August 24, 1995. He was deported the same day. His deportation came weeks before First Lady Hillary Clinton visited Beijing to attend an international conference.
Li Shaomin, an American citizen and scholar, was taken into custody in late February 2001 in Shenzhen and subsequently charged with spying for Taiwan. He was tried by the Beijing Intermediate People’s Court on July 14, 2001 and sentenced to deportation as a stand-alone penalty. He was deported on June 25, 2001.
Fong Fuming, an American citizen and business consultant, was sentenced to five years’ imprisonment and deportation in March 2002 by the Beijing Intermediate People’s Court for the crimes of trafficking in state secret and bribery. He was released 22 months early on October 27, 2003 and deported the same day to the United States.
David Dong Wei, an American citizen and businessman, was taken into custody in September 2003 on suspicion of spying for Taiwan. He was convicted and sentenced to 13 years in prison and deportation by the Guangzhou Intermediate People’s Court in April 2005 for the crime of espionage. After sentence reductions totaling four years, David Dong Wei was released in September 2012. He is believed to have been deported to the United States shortly after his release.
Xue Feng, an American citizen and geologist, was placed under residential surveillance in a designated location in 2007. He was convicted in 2010 of trafficking in state secrets and sentenced to eight years in prison, confiscation of RMB 200,000 worth of property, and deportation. He served his full sentence, minus a sentence reduction of 10 months, and was deported on April 3, 2015, returning to the United States the same day.
Sandy Phan Phan-Gillis, an American citizen and businesswoman, was taken into custody in March 2015. She was convicted of spying for the United States and sentenced to three and one-half years in prison, deportation, and confiscation of personal property on April 25, 2017. Her deportation and return to the United States on April 28, 2017 came six weeks after American Secretary of State Rex Tillerson visited Beijing to prepare for the summit between Chinese President Xi Jinping and American President Donald Trump held on April 6-7, 2017 in Florida.
Kevin Garratt, a Canadian citizen detained in 2014, was convicted of spying for Canada and sentenced to eight years in prison, a fine of Canadian Dollar 20,000 (in RMB equivalent), and deportation in September 2016. His deportation on September 15 came several days after Canadian Prime Minister Justin Trudeau finished a state visit to China.
There is no clear basis under Chinese law for executing a deportation sentence prior to a defendant serving his or her imprisonment sentence. In all three cases where deportation was carried out prior to the defendant serving his or her sentence, the case had become a political issue affecting relations between the home countries and China, and the foreigners who were deported were the subjects of intense media attention, civil society advocacy, and high-level interventions by leaders of the home countries.
Deportation as an Administrative Penalty in Politically Sensitive Cases
Chapter Six of the Entry and Exit Administration Law of the People’s Republic of China (2014) and both the 1993 National Security Law of the People’s Republic of China and the Counterespionage Law, which took effect on January 1, 2015, provide for public security organs and state security organs, respectively, to carry out deportation of foreigners following detention and investigation, but prior to indictment and trial.
In April 2001, American citizen Wu Jianmin was detained by agents of the Guangdong State Security Bureau on suspicion of spying for Taiwan. According to the Xinhua News Agency, he was expelled from China on September 29, 2001, and returned to the United States the same day.
More recently, Swedish citizen and human rights worker Peter Dahlin was taken into custody on January 3, 2016 and placed under residential surveillance in a designated location. He was investigated for violating Article 23 of the Criminal Law, using foreign funding for subversive activities, and, following the airing of a taped confession, deported on January 24, 2016. His property was confiscated and he was banned from entering China for 10 years.
China’s public security organs have detained, investigated, and deported foreign missionaries who have engaged in proselytizing in China on several occasions in recent years. Most have received little or no media attention.
It is likely that espionage cases involving both Chinese citizens and foreigners will increase following the release of local state security bureaus’ measures that provide rewards to citizens who report espionage activities. The Beijing measures, announced on April 10, 2017, provide rewards on a sliding scale up to a maximum of RMB 500,000 for deterring and preventing espionage activities. If enacted, the National Intelligence Law, released on May 17, 2017 for public comment, will increase scrutiny of the activities of foreigners and foreign institutions in China.
Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of Justice, and Ministry of Finance: Regulations Regarding the Implementation of Compulsory Deportation of Foreigners (Jointly issued by SPC et. al. on July 31, 1992. Public Notice [1992] No. 18)
To the High People’s Courts, High People’s Procuratorates, Public Security Departments (Bureaus), Foreign Affairs Offices of the People’s Governments, Justice Departments (Bureaus), Finance Departments (Bureaus) of all provinces, autonomous regions and directly-administered municipalities:
The following regulations are issued concerning the implementation of compulsory deportation of foreigners who have violated the law:
I. Applicable Scope
These regulations need to be complied with when deporting foreigners under one of the following circumstances:
In accordance with the Criminal Law, where a foreigner has been sentenced by a people's court to expulsion, either as a stand-alone or supplemental penalty;
In accordance with the Exit and Entry Administration Law of the People's Republic of China [1985], where the Ministry of Public Security has expelled or ordered a foreign offender to depart before the expiry of his/her limit of stay;
In accordance with the Exit and Entry Administration Law of the People's Republic of China [1985] and other relevant laws, a foreigner will be compulsorily deported where the public security organ has given an order of repatriation, a shortened duration of stay, revoked the residence permit, or where the foreigner has failed to depart voluntarily before the expiry of his/her limit of stay;
In accordance with international treaties or the Regulations of the People's Republic of China Concerning Consular Privileges and Immunities, where a foreigner with diplomatic or consular privileges and immunities has been declared by China as persona non grata, or whose diplomatic or consular status is not recognized by the China, or has been ordered to depart before the expiry of his/her limit of stay, or has overstayed or refused to voluntarily depart without justification.
II. Executive Organs
The tasks of executing and monitoring the deportation of foreigners shall be carried out by public security organs in accordance with the law or official documents:
Where a foreigner is sentenced to expulsion as a stand-alone penalty, the people’s court shall deliver the criminal judgment and a copy of the execution order to the provincial public security organ within fifteen days of the effective date of the judgment. The provincial public security organ shall designate a subordinate organ to execute the deportation.
Where a foreigner is sentenced to a fixed-term sentence, expulsion as a supplemental penalty will be carried out after the expiration of the prison term. One month before the sentence expires, the prison administration bureau shall deliver the original judgment and a copy or duplicate of the execution order to the provincial public security organ. The provincial public security organ shall designate a subordinate organ to execute the deportation.
Where a foreigner is expelled or ordered to exit before the expiry of his/her limit of stay, the local public security organ shall execute the order in accordance with the Entry and Exit Administration Decision of the Ministry of Public Security.
Where a foreigner is given a deportation order, a shortened duration of stay, or whose residence permit is revoked, the local public security organ shall execute the deportation order in accordance with the decision.
Where a foreigner is given a shortened duration of stay or whose residence permit is revoked, the host organization can also arrange his/her departure. The public security organ shall perform the supervision in accordance with the decision.
The public security organ shall carry out and monitor the deportation order in conformity with the official documents issued by the Ministry of Public Security where a foreigner with diplomatic or consular immunity has been declared by China as persona non grata in accordance with international treaties or the Regulations of the People's Republic of China Concerning Consular Privileges and Immunities, or whose diplomatic or consular status is not recognized by China, or has overstayed or failed to voluntarily depart without justification after being ordered to exit before the expiry of his/her limit of stay.
III. Preparation Work Before Execution
When a foreigner is to be compulsorily deported, all documents in their possession permitting them to stay in China shall be confiscated. The visa on the passport shall be shortened, stamped with a seal prohibiting an extension of stay, or revoked.
Foreigners who have been expelled are listed as persons to be denied entry. The matter shall be handled in accordance with The Specific Measures Regarding the Reporting of Foreigners to be Denied Entry ([1989] Public Security Border Control No. 87). For other types of deportations of foreigners, when it is necessary to place someone on the list of persons to be denied entry it should be done in accordance with regulations.
Where a foreigner is listed as a person to be denied entry, the public security organ shall announce to the person the period during which s/he will be denied entry.
The organ executing a deportation must examine the validity of the foreign deportee’s passport, other identification documents that can be used in place of a passport, and any valid visas for transiting through a third country or region.
If the foreigner does not possess the aforementioned visas or documents, the organ executing the deportation shall contact the embassy or consulate that is responsible for issuing the required visa or documents. If the person has a host organization in China, the host organization shall contact the embassy or consulate. If the foreigner is not associated with a host organization, the Exit and Entry Administration Bureau of the Ministry of Public Security or local public security organ shall contact the embassy or local consulate. If the foreigner's home country has no embassy or consulate in China, or if the embassy or consulate does not cooperate, the organ executing the deportation shall report to the Ministry of Foreign Affairs or the Ministry of Public Security so that the matter may be resolved by diplomatic means.
Where the foreigner is from a neighboring country sharing borders with China, s/he may exit from a border port or crossing without processing documents or visa.
A foreigner who has been given a deportation order shall pay for his/her own expenses for air travel, ground transportation, or travel by ship. If the foreigner cannot afford the expenses, or if the host organization is not responsible for providing the travel expenses, the embassy or consulate shall pay (following the same means of coordination described in the previous clause). If the embassy or consulate refuses to take responsibility, or if the foreigner's home country has no embassy or consulate in China, the Chinese government shall be responsible for the expenses.
Where a foreigner has been given a deportation order, in deciding whether it is necessary to notify the embassy or consulate of the reasons for and date of the deportation, the local foreign affairs office may request instructions from the Ministry of Foreign Affairs.
If a case can cause possible diplomatic interventions or disputes, the authorized organ shall notify the local foreign affairs office of the case specifics and coordinate external lines of response with the local foreign affairs office. If a case requires a press release, the organ must seek approval from the Ministry of Public Security and Ministry of Foreign Affairs.
IV. Execution Schedule
The public security organ in charge shall immediately carry out the deportation order in accordance with the schedule set forth by the assigning organ. If there are special circumstances that require a delay, the organ shall seek approval from the public security department (bureau) of the province, autonomous region or directly-administered municipality.
V. Departure Port
Where a foreigner is to be deported, a departure port shall be arranged in advance and the nearest port shall be selected.
Where a foreigner is to be deported to a neighboring country sharing borders with China, a border crossing shall be selected as the departure port.
The organ executing the deportation shall coordinate with the public security organ at the departure port or immigration checkpoint, report details about the person being deported, arrival time at the port, transportation, flight number, ground transportation number, schedule and other matters related to the deportation. The public security organ at the departure port or immigration checkpoint shall assist with matters related to the departure.
Whenever possible, the departure time shall be scheduled on the same day as arrival at the departure port. If the foreigner being deported cannot arrive and depart on the same day, the local public security organ at the departure port shall provide necessary assistance with custodial measures.
VI. Execution Method and Related Matters
Where a foreigner is sentenced to expulsion by the people’s court as a stand-alone penalty or is given a deportation order by the Ministry of Public Security, the foreigner shall be escorted by both armed police of the public security detention center and foreign affairs police; where a foreigner is sentenced to expulsion as a supplemental penalty after the expiration of the prison term, the foreigner shall be escorted by prison officers, guarding armed police and foreign affairs police of the public security organs. The above mentioned two types of foreigners may be handcuffed if necessary. Other deported foreigners who need to be escorted may be accompanied by foreign affairs police. If no police escort is required, the organ executing the deportation may assign foreign affairs police at the point of departure to monitor the deportation.
The number of escorting personnel shall be determined by the specific circumstances. However, in principle, there should be a minimum of two officers.
Escorting personnel shall be vigilant, ensure safety and prevent escape, violent acts, suicide, or acts of self-inflicted harm.
Immigration checkpoints shall arrange passage for foreigners in accordance with the deportation order, decision or judgment, and said person’s passport and documents.
Personnel executing a deportation shall monitor the means of transportation for the foreigner being deported and shall not leave the premises until s/he has boarded and departed. If a foreigner is deported through a border crossing, the personnel shall monitor the said person's departure from China before leaving the premises.
Depending on the specific circumstances and the means of transportation for the deporting foreigner the personnel shall take photographs, or record videos if conditions permit.
VII. Expenses
The expenses incurred in deporting a foreigner (including meals, lodging, and transportation for escorting personnel and meals, lodging, transportation, fees for renting temporary lodging, and international travel expenses that cannot be borne by the foreigner, or which the embassy or consulate in China refuses to pay, or the foreigner's home country has no embassy or consulate in China) shall be handled in accordance with the existing fiscal system and borne by the finance department where the case is handled.
VIII. People's police and officers tasked with executing compulsory deportation shall have solemn demeanor, adhere strictly to professional duties, be civilized, and abide by foreign affairs discipline.
Compulsory deportation of foreigners, from now on, shall comply with these regulations.
