Article 5 of the Nationality Law of PRC (“Nationality Law”) provides that “any person born abroad whose parents are both Chinese citizens or either one of whose parents is a Chinese citizen shall have Chinese nationality. But a person whose parents are both Chinese citizens and have both settled abroad, or either one of whose parents is a Chinese citizen and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality.” This clause is to determine whether a child has Chinese nationality when one or both parents reside outside of China, and there is no ambiguity on this point. However, what the term “settled abroad” employed exactly refers to? Neither the Nationality Law nor the explanation to this law make a definition or interpretation. “settled” apparently differs from short stay, but how long or which type of stay shall be ascribed to “settled”?
In the system of China laws and regulations, “settled” was defined earliest in a Circular on Interpretation to the Identification of Overseas Chinese, Returned Overseas Chinese, Overseas Students, Returned Overseas Students and Overseas Chinese families issued by the overseas affairs office of State Council (Circular Gun Qiao Fa [1984] No.2) in 1984, which illustrated that “Settled, means having obtained residence right, or actually live abroad China and make living there”. In 2009, the same office of State Council issued another circular Gun Qiao Fa [2009] No. 5, Regulations on Determining the Identification of Overseas Chinese, Foreign nationality Chinese and Returned Overseas Chinese and Overseas Chinese Family, which gave a clearer criteria for the definition, i.e. “Chinese citizens who have obtained the long-term or permanent residence right of a foreign country and have lived in the country for consecutive 2 years, and the accumulative time during which is no less than 18 months. ”
In other laws and regulations the term “settled abroad” is mostly referred. In some circular on tax the Circular Gun Qiao Fa [2009] No. 5 was referred to in illustrating the term, tough in other laws and regulations the Circular was not mentioned. But in practice, the same definition was applied. The Nationality Law is not an exception.