By Neels Coertse

I am mindful of the decision in the then Transvaal Provincial Division in the matter between Fang v Refugee Appeal Board and Others 2007 (2) SA 447 (T).

The court in Fang concluded, inter alia, that ‘the one-child policy of the People’s Republic of China is a law of general application. It applies to all the people in the country. The relevant penalties are applied to those who have contravened said policy. They are punished for what they have done and not for what they are.’

South Africa (SA) treated Fang with dignity and respect and the family flourished with a total of four children. The Fang family were served with a prohibited person’s permit, effectively a notice to return to China. That is where the Fang family’s problems started.

This discussion is not about this specific court case; it did, however, lead me to investigate the family planning policy of the People’s Republic of China (China) as I was not entirely satisfied with the court’s findings and decision.

Mr and Mrs Fang, are to me, the face of an international problem of expatriate Chinese with more than one child.

What does the family planning policy of China have to do with SA? In light of the current international political and economic ties between SA and China it should only be prudent for South African lawyers to be aware of the special circumstances surrounding expatriate Chinese families with more than one child.

It is safe to envisage an influx of citizens from China into SA. And it is further safe to expect the concomitant problems flowing from the Immigration Act 13 of 2002, as amended, and the Refugees Act 130 of 1998 as amended.

China’s Constitution

Article 25 of the Constitution of China provides: ‘The State promotes family planning so that population growth may fit the plans for economic and social development.’ It makes one ask the question: What is China’s family planning policy? How is it practically applied?

Having regard to the above quote, art 49 of the Constitution states:

‘Marriage, the family and mother and child are protected by the State. Both husband and wife have the duty to practise family planning. Parents have the duty to rear and educate their children who are minors, and children who have come of age have the duty to support and assist their parents.’

This sounds very well and good, but the question remains whether the policy is as good as it looks on paper. Let us examine this.

The heihaizi

Who are the heihaizi? The heihaizi are the children who are born out of the one child policy, they are the unauthorised children in China and are foreigners in their own country.

The penalties for having more children than the policy allows includes –

• forced abortions;
• no access to medical facilities;
• no access to education;
• no access to public transport; and
• the parents of the child have to pay hefty fines (which are referred to as a ‘social upbringing charge’) up to ten times the parent’s annual income.

A couple who adhere to the policy, receive a certificate of honour. This certificate gives the couple access to a range of enhanced benefits throughout their lives, from –

• priority schooling;
• free medical treatment;
• longer maternity;
• paternity and honeymoon leave;
• priority access to housing and to retirement homes; and
• enhanced pension provisions.

This certificate can, however, be revoked if the couple breaches China’s Family Planning Policy.

Even in spite of the above ‘perks’, married couples in urban areas are still reluctant to have more than one child. The reasons behind this reluctance are complex and not too clear, but to state that the high costs of rearing an additional child, the lack of adequate child care and education facilities and the decades long governmental propaganda against more children takes their toll against having more than two children. The ‘penalties’ for couples that exceed the limitations means lifelong hardship for the entire family.

When an unauthorised child is born the family faces additional penalties, for example, in the workplace it may mean demotion or even loss of employment. The social upbringing charge is based on income and you have to pay a 50% down payment and the balance within three years.

Although the official policy has somewhat relaxed, it is still too early to really assess the practicalities of the changes. The one-child mindset was carefully and stringently crafted and then the policy has been forced on Chinese citizens since 1979.

Extramarital sex in China was taboo until fairly recently when it was legalised. A legal marriage is, however, still a prerequisite to procreate.

To obtain a birth certificate means that a certificate was obtained prior to the birth of the child to certify the birth was authorised by China.

The one-child policy – as it was previously known – was changed during 2015 and it is now legal to have two children. There are stringent requirements in place to have a third child without incurring penalties, but couples no longer needed governmental authorisation to have two children.

It is far too early to assess the effect of China’s Family Planning Policy in its new format, especially in light of what China’s Vice Minister of National Health and Family Planning Commission, Wang Peian, reportedly said shortly after the announcement of the two-child policy:

‘China would not abandon its family planning restrictions. … A large population is China’s basic national condition so we must adhere to the basic state policy of family planning. … “China needs to … promote birth monitoring” before the two-child policy comes into effect. … The problem with the one-child policy is not the number of children “allowed.” Rather, it is the fact that the CCP [Chinese Communist Party] is telling women how many children they can have and then enforcing that limit through forced abortion and forced sterilization’ (www.gpo.gov, accessed 30-11-2018).

China’s Family Planning Policy

China’s Family Planning Policy has been amended from the stringent one-child policy to maximum two children without prior governmental authorisation. The previous policy led to many socially unacceptable results, such as infanticides of baby girls in preference to that of boys. Girls were even abandoned in childbirth or left to their own devices. There were other negative social outcomes, such as gender imbalances, aging population and shrinking workforce. All these negative outcomes called for a revision of the old policy.

Urban and rural hukou

The ‘hukou’ determines your status in life. It is more desirable to have an urban hukou than a rural hukou. You cannot move easily from rural areas to urban areas in China. This population control system reminds me of the old passbooks used during Apartheid. If you were born in a rural area you obtain a rural hukou and that determines your lot in life. It is commonly accepted that China’s Family Planning Policy is more relaxed in respect of those registered with a rural hukou.

Recommendations

What will the approach in SA be to Chinese couples that have exceeded China’s Family Planning Policy?

It is recommended that the legal practitioner should:

• Start with a very thorough investigation of the clients’ personal circumstances.
• Canvass, inter alia, what the consequences will be when the clients return to their country of origin.
• Obtain the client’s valid travelling documents.
• Obtain the client’s marriage certificate and compare it with the birth dates of their children.
• Verify if the clients are in possession of a certificate of honour. Obtain the supporting documents pertaining to the certificate of honour, which will enable the practitioner to access background facts and circumstances.
• Birth certificates of the client’s children (irrespective of where these children were born).
• What is the client’s hukou status? Obtain supporting documents underlying the status as it will enable the practitioner with background facts and circumstances.
• Read the Fang case thoroughly and, more particularly, try and obtain the enabling statute namely the Aliens Control Act 96 of 1991 and the prohibited person’s permit.
• Obtain sworn translations of all the documents that are in a foreign language.
• Ascertain whether the clients are in SA legally or illegally. That will determine what to do next.
• Study the Refugees Act especially ss 2, 3 and 4.
• Be thoroughly acquainted with the definition of a ‘sur place’ refugee. This is a well-known scenario where people leave their home country with a legal passport and while they are in a foreign country, they will defect and then apply for refugee status. Fatima Khan and Tal Schreier (eds) in Refugee Law in South Africa (Cape Town: Juta 2014) at p 29 gives a definition for a ‘sur place’ refugee: ‘A “sur place” claim concerns a person who was not a refugee when they left their country, but who becomes a refugee due to changes in circumstances in their home country or as a result of their own actions while in the foreign country.’
• Be familiar with the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the chapters and paragraphs that relate to ‘sur place’ refugees and the importance of the family unity.
• Build a case around the aspect of the dire lifelong consequences flowing from a breach of the threshold of China’s Family Planning Policy.
• Do not forget to get guidance from the Bill of Rights in the South African Constitution and, more specifically, consider the following:

– equality (s 9);
– human dignity (s 10);
– life (s 11);
– freedom and security (s 12);
– privacy (s 13);
– health care, food, water and social security (s 27);
– children (s 28); and
– education (s 29).

Neels Coertse BIur LLB (RAU) is an attorney at CJ Coertse Attorneys in Johannesburg.

This article was first published in De Rebus in 2019 (JanFeb) DR 21.