ALSA 2025 meeting

In China’s current governance of irregular migration, administrative authorities operate primarily through “living law,” despite the presence of formal statutes. Statutory texts such as the Exit-Entry Administration Law and the Regulations on the Administration of the Entry and Exit of Foreigners provide only broad legal frameworks. In practice, enforcement relies on a patchwork of regulations and administrative policies issued by the Ministry of Public Security, the National Immigration Administration, and local governments—such as the Work Regulations on Repatriation Institutions for Illegal Migrants, the Public Security Regulations on the Hotel Industry, and local action plans targeting “foreigners involved in illegal entry, illegal residence, and illegal employment.” These instruments form an efficiency-oriented yet procedurally deficient system of governance, reflecting a structural condition of “absent law.”

Drawing on the socio-legal theory of “absent law,” this paper analyzes how China governs irregular migration through a functionally autonomous but legally subordinate order—an institutionalized system composed of administrative rules and policy instruments that, while grounded in law, operate with limited procedural oversight.

While this system enhances short-term administrative capacity, it generates three categories of risk: (1) institutional risk, as heavy reliance on sub-statutory norms may blur rule-based governance and divert attention from the core principles of statutory law; (2) rights-based risk, as limited access to remedies and challenges in securing substantive relief reveal structural gaps in procedural justice; and (3) reputational risk, as opaque enforcement may undermine judicial credibility and harm China’s international human rights image.

By examining this configuration of legal marginalization, the paper argues that although statutory law offers a principled framework, irregular migration is largely governed through sub-statutory rules and policy guidelines—creating a system where law exists in text but is functionally displaced by administrative norms in practice.