Order No. 841 comes into force: When “can we leave the country?” will be more deeply integrated into national security governance

On September 15, the State Council decree No. 841 of the State Council on the Regulations on Exit and Entry Management was formally implemented. On the surface, it is an exit and entry administrative regulation with only 19 articles; from the institutional structure, it is more important to bring citizens to exit, foreigners to exit, industrial and technical security, national security and intermediary services supervision into the same administrative framework. In the past, the restrictions in the Exit and Entry Management Law, the passport system, export control and various special measures have been dispersed, and now there is a more centralized and more operational regulatory interface.

This means that “can you leave China” is no longer just a question of the border inspection agency’s nuclear verification. Article 841 allows Chinese citizens to travel to the highest-risk countries or areas that seriously endanger personal safety to be dissuaded; Article 3 requires that the application for exit entry and residence is “true and legal” and allows the agency to request documents, data and electronic data; Article 4 also includes factors that endanger national security, national interests and industry, technical security and other factors within a certain period of time.

The real change is that the right to exit is further “safe.”

The new regulations are intended to respond to new situations in the cross-border movement of persons, safeguard legitimate rights and interests, safeguard national sovereignty and security, and strengthen sectoral coordination. This logic has its clear national governance objectives: cross-border fraud, technology outflow, overseas risks, foreign sanctions and countermeasures need to be handled by the administrative organs. But when the national security, national interests, industrial security and technological security simultaneously enter the decision to leave the border, the issue shifts from “does no management need” to “where the border is managed”. These concepts themselves are very broad, and once there is no open, stable and reviewable applicable criteria, the administrative discretion will directly determine whether individuals can cross the border.

Article 6 requires the restricted expatriates to be informed in writing of facts, reasons, legal grounds and remedies, but also permits disclosure not to be disclosed when disclosure may affect national security or criminal investigation. This creates a systemic tension: on the one hand, regulations recognize that restricted persons should know why they are restricted, and on the other hand, national security exceptions may undermine the party's ability to obtain full reasons, prepare reconsideration or litigation materials. For any rights restriction, the quality of the system is not really determined by whether the authorities have authority, but whether it can be explained, reviewed and corrected after authority is initiated.

Human Rights Watch called this change a further tightening of freedom of exit and noted that China has imposed exit restrictions on some human rights defenders, ethnic minorities, government officials and foreign citizens in recent years. The organization believes that international human rights standards require that exit restrictions have a clear legal basis and meet the principles of necessity and proportionality. The Chinese government has interpreted the relevant system as part of national security, public order, personal safety and cross-border governance. Where the two positions really conflict is not whether the state can restrict the exit, but whether the reasons for the restriction are sufficiently specific, whether the deadline is clear, and whether individuals have effective remedies.

* Order 841 also pushed "frontier control" from individual cases to governance systems.

The new regulation also requires entry and exit brokerage records and prohibits intermediaries from assisting in providing false materials, illegally obtaining documents or carrying out acts that endanger national security and interests; for foreigners, the new regulation also links mechanisms such as counter-listings, lists of unreliable entities and exit restrictions. As a result, it is not a single-sided inspection measure, but a set of institutional networks that connect immigration management, national security, industrial policy, technical supervision and foreign counter-action. For corporate executives, researchers, employees of foreign institutions and those on the edge of national security cases, cross-border movements are therefore more vulnerable to other policy areas.

Focus on China believes that observing the order No. 841 does not only depend on how many "prohibitions" it has written, but also on how it redistributes the decision-making power between the state and individuals. The state can of course take outbound restrictions according to law in criminal cases, national security and major public risks, but when the reasons for the restriction are constantly expanding, and the starting standards, evidence disclosure and remedial mechanisms are still mainly in the administrative system, the freedom of action of individuals is more dependent on the self-restriction of the authorities. In the future, the actual examination of this regulation will be specific cases: who makes the decision not to leave the country, how long the decision lasts, what reasons the parties get, whether the courts and review authorities can conduct substantial review.

Therefore, the political and rule of law meaning of Order 841 is not the exaggerated judgment that “everyone may be banned from leaving the country” but that China’s national security governance is once again extended to the field of personal movement.