Taiwan’s Exceptional Policies for Mainland Chinese Migrants and Refugees

• In Event: Foreign Workers or Future Citizens in East Asia?

Abstract

In this paper, I explore Taiwan’s migration diplomacy with Mainland China, especially via its Nationality Act. Migration diplomacy refers to a state’s instrumentalization, weaponization, and commodification of migration (Tolay 2022). Specifically, with the state as the primary actor, migration diplomacy encompasses “diplomatic tools, processes, and procedures to manage cross-border population mobility” (Adamson and Tsourapas 2019). I examine the interests of the Taiwanese government in managing its relations with Mainland China. The research question I examine in this paper is why Taiwan (ROC – Republic of China) has not formed consistent immigration policies for migrants from Mainland China (PRC – People’s Republic of China). Although Taiwan has many immigration laws and regulations, its government does not currently have a clear and consistent migration policy, and the country does not have a formal refugee law. Control over Mainland Chinese migration into Taiwan is more restrictive than for migrants from other countries. While Taiwan has a jus sanguinis (right of citizenship based on descent) immigration policy for Overseas Chinese, this policy does not extend to migrants from Mainland China. Within Taiwan, population movement between Taiwan and China is seen as a serious national security issue due to tensions between the two countries stemming from the end of the Chinese Civil War and Chiang Kai-shek’s Nationalist Party’s retreat to Taiwan after its defeat by the Communists in 1949 (Lin 2012). Although I agree that national security plays a role in Taiwan’s immigration policies towards those from Mainland China, I do not believe that it accounts for the whole story.

The qualitative methodology I use to answer my research question is a historical institutionalist approach. I emphasize the ways in which changing institutions of the national state shape migration policies. My analysis will focus on state actors and state structures. Accordingly, this project involves textual analysis of 15 pieces of legislation. The time period I will analyze starts in 1971, the year in which Taiwan was expelled from the Chinese seat in the United Nations, and ends in the current year. I employ the critical juncture framework of path dependence, most notably utilized by Ruth and David Collier (2012), to explain the persistence of the Nationality Act in Taiwanese immigration policy. The empirical material for this paper consists primarily of immigration legislation and proposed legislation dealing with updating the Nationality Act in Taiwan.

I argue that the answer to the question of why Taiwan has not developed consistent immigration policies for migrants from Mainland China lies in how the ROC/Taiwanese government distinguishes — or is legally unable to distinguish — between nationals and outsiders. This conundrum is a result of Taiwan’s Nationality Act, originating in 1929 when the government of the Republic of China was housed in Mainland China and updated in 2000, the year in which Nationalist Party finally lost the presidential election. Generalissimo Chiang Kai-shek, Leader of the Kuomintang (KMT), also known as the Nationalist Party, and other Republic of China officials were forced to move the government to Taiwan after losing the Chinese Civil War to the Chinese Communist Party (CCP) in 1949. The Chinese government since the late Qing Dynasty (1644-1911) regards ethnic Chinese, no matter how long ago they have left China and lived permanently overseas, as its nationals. Following from this tradition, the Nationality Act stipulates that every Chinese person outside the PRC (including Hong Kong and Macau) is a ROC/Taiwanese national irrespective of how far descended from a Chinese person one is and thus qualifies for expedited immigration processing and naturalization based on jus sanguinis. The Act does not stipulate that Chinese people from Mainland China are not ROC nationals but rather that they do not for the jus sanguinis preferential treatment for immigration. As a result, the Nationality Act excludes Mainland Chinese, Hong Kong, and Macau residents from the legal definition of refugee because refugees, by definition, must be foreign nationals (Wang 2011).

The convoluted Nationality Act was essentially a Chinese one-drop rule and made it much more difficult for the ROC government to declare point-blank whether a Southeast Asian refugee of Chinese heritage, for example, was a foreigner or a compatriot. As a result, many refugee operations were executed and justified behind the banner of “repatriation.” Despite offering what was essentially a resettlement scheme, the ROC government understood these efforts (or portrayed these efforts to other state actors) as extending consular protection to its own citizens and offering emergency evacuation for ROC expatriates. Repatriation, rather than granting asylum to foreign nationals, was an effective workaround for the ROC government both domestically and internationally.

Author

• Angela Ju, St. Edward's University