Foreigners working illegally lose judicial protections

As of Feb 1, courts will not protect the labor rights of foreigners working without a work permit, according to an interpretation of labor laws released by the Supreme People's Court, China's top court, on Thursday.

Foreigners without a work permit, even if they are under an employment contract, will not have their "labor relationship" with employers recognized by the court, according to the interpretation.

Foreigners who possess an expert certificate - a license issued by the government to some foreign workers with expertise in their fields - and obtain a work permit designed for foreign experts and are employed in China will benefit from the courts' recognition of their "labor relationship" with employers, read the judicial interpretation.

"Labor relationship" is a legal term, which covers labor rights including social insurance and compensation for work injuries.

As China has deepened its opening-up, an increasing number of foreigners are working in China, and labor disputes involving foreign workers are also on the rise, according to the top court.

Foreigners who do not obtain a work permit are not qualified laborers so they cannot establish labor relations with employers, according to the top court.

Jiang Ying, a labor law professor at the China Institute of Industrial Relations, said labor laws have stated that for a foreigner to work legally in China, they must have a work permit, and the top court's interpretation supports a message of protecting foreigners' legitimate rights when labor disputes occur.

A work visa is a premise to apply for a work permit, according to Chinese laws.

"As China develops, many foreigners come to work without undertaking legal procedures," she said, "That will greatly affect China's job market."

Jiang said her study found many foreigners working in language training institutions do not have a work permit.

"The interpretation would make it harder for foreigners working without a permit to seek protection of their rights because the court will not recognize their labor relationship with employers," she said, "So it would, to some extent, hamper the enthusiasm of foreigners who want to seek illegal employment in China."

However, the interpretation has erased a clause that was in the draft of the interpretation that had been available for public comment. Foreigners who have worked for an employer can get their pay according to their contract, the erased clause read.

A labor rights lawyer, who gave his name as Wang, said the omission of the clause does not mean that foreigners will have less chance of winning a labor dispute.

Companies have to pay the wages if the foreigners have worked for them, regardless of whether they have a work permit or not, as long as they have signed a labor contract, he said.

"But foreigners without a work permit do not have the protection of the 'labor relationship' with the employer in the courts. That means the court may not recognize their labor rights including social insurance, healthcare, compensation for work injury and double pay for overtime."