A realisation that even the most draconian controls on the Tibet-Nepal border will not succeed in stopping the flow of Tibetans who each year clandestinely cross into Nepal, mainly to proceed to India in order to meet the Dalai Lama, has led the Chinese authorities to adjust their policies. Rather than according to Tibetans the same unlimited right of movement which ethnic Chinese (Han) enjoy, and which is in theory anchored in the People's Republic of China's (PRC) legal system, the Chinese authorities have opted for pressurising Nepal into labelling new Tibetan arrivals as lawbreakers, as they are in China. This undermines the 'Gentlemen's Agreement' between the United Nations High Commission for Refugees (UNHCR) and the government of Nepal, which is sponsored by developed countries and India and makes sure that new Tibetan arrivals are treated asde facto refugees.

Although often glamorised as an act of political defiance toward the Chinese state, or disapproved of as a simple contravention of Nepali laws, the perilous and expensive journey, which numerous Tibetans undertake to cross the border into Nepal clandestinely, is the direct result of the implementation of Chinese policy. According to PRC laws, Tibetans, like all Chinese citizens, are entitled to travel abroad if they wish; in practice though, the authorities in Tibetan regions effectively impede many from doing so through informal restrictions on obtaining travel documents in the knowledge that a literal interpretation of Chinese law would allow more Tibetans to go and visit the Dalai Lama, as well as attend exile institutions in India(1).

Up to 2008, roughly 2,000 Tibetans crossed the border clandestinely each year(2). In 2008, following the unrest across Tibet, large contingents of Chinese border forces virtually sealed off the frontier to Nepal. Still, even under these extreme circumstances, about 400-450 Tibetans managed to cross over into Nepal. Continuing efforts of the Chinese security forces to keep the border under total control could not prevent the number of new arrivals to the Tibetan Reception Centre from rising again in 2009, with about 700 people arriving. In 2010, by the end of April, about 300 Tibetans had arrived at the reception centre. By the same date, 200 of them had passed through the established transit procedure and reached India.

The procedure for arriving Tibetans consists of three stages.

• First, they are registered by the reception centre, provided with medical care if needed, (many suffer frostbite, particularly in the cold season,) as well as with clothing and other essentials. They are debriefed and photographed and a file is established identifying each of them.
• At the second stage, they have to visit the Indian Embassy, which examines the individual files, and takes its own records before delivering them with ID papers and an entry permit for India.
• At the third and final stage, the UNHCR collects the Tibetans' papers and provides each of them with a 'Person of Concern' card that they present to Nepal's immigration authorities who then stamp it with an Exit Permit.

The duration of the procedure is variable. While in the past, unusual numbers of new arrivals occasionally have led to bottlenecks in the processing of the cases through the Indian Embassy in Kathmandu, currently, even with substantially fewer arrivals than in the past, it is delays in the delivery of the Exit Permit by the Nepali authorities that appears to negatively affect the speed of the procedure.

Basic observations about the Tibetan arrivals for 2010 so far reveal two current trends. About 15% of them are children sent by their parents to attend schools in India. This figure is normally much higher, and it seems to indicate that the Chinese authorities have been successful in damming the outflow of youngsters. This matches information provided by sources within Tibet during 2009 that suggests local authorities have been put under pressure to ensure better control of children in school attendance.

Furthermore, it appears that the vast majority of the new arrivals are from the traditional Kham region, most of which today is part of Sichuan province, and mainly from Kardze prefecture (Chin: Ganzi). Some Tibetan exiles link this directly to that region's tradition of political dissent, however, discussions with new arrivals only occasionally reveal a clear link between strong political views and the readiness to undertake the long trek to Nepal and ultimately India. It appears that the particular reluctance of the local authorities to deliver legal travel documents, as a response to the restiveness of the region, is the main cause for many Tibetans to risk the clandestine journey.

Recognising that even with extreme security measures in border regions, like those imposed in 2008, the will and skills of Tibetans to cross the border clandestinely will probably always prevail, the Chinese authorities appear to have shifted their method of tackling the problem. In fact, although security force contingents continue to keep the border as tightly controlled as possible, the very strict restrictions on non-local Tibetans accessing border regions seem to have been eased to an extent(3). For all that, in autumn 2009, the Chinese authorities moved to co-opt Nepal's border forces into their efforts to keep Tibet's border under control(4). They have provided funds, training and other support to this effect to contingents of Nepal's Armed Police Force (APF) stationed on the border. Since early 2010, several groups of Tibetans who had crossed the border clandestinely were intercepted by the APF and at least temporarily detained.

In the most recent case, in mid-April 2010, nine Tibetans were arrested for "illegally entering the country from Tibet", and detained in the custody of the immigration office in Kathmandu. During their detention, a representative of the Chinese embassy, who presented himself as a security officer but wore plain clothes, visited the immigration office three times. On his first visit, he spoke with the Tibetans in Chinese, trying to convince them to go back to Tibet and promising them immunity if they did so. However, the Tibetans refused to speak to him or simply ignored him. On his second visit, the Chinese officer asked the Nepali immigration officers to copy photos and the files on the detained Tibetans onto a USB memory stick that he had brought especially for this purpose. This was refused to him. The Tibetans had, in any case, provided fake names to the Nepali immigration, as is common practice. On the third visit, the Chinese officer appeared with a camera and the intention of taking photos of the detained Tibetans. Also in this case, permission was refused to him.

The Tibetans were requested by the Nepali immigration to pay fines of 2,600 NPRs (UK£24; US$35; EUR€28), as per Nepali law, for crossing the border illegally, but they declared that they had no money to do so. According to current regulations, the Tibetans could have been kept in jail for up to 107 days if unable to pay the fines. Sources state that UNHCR was requested to pay the fines on behalf of the Tibetans, but refused to do so, probably as a matter of policy, as there is an obvious risk that further demands would then follow with future Tibetan arrivals. UNHCR was not available for comment. Finally, private individuals paid the fines and the Tibetans were released after roughly three weeks spent in custody, and handed over to the Tibetan Reception Centre.

During the visit of Nepal's Minister of Foreign Affairs, Sujata Koirala, to China in September 2009, Nepal and China agreed to what Chinese Public Security Minister Meng Jianzhu then called a "China-Nepal law-enforcing cooperation" and both agreed to "strengthen cooperation on border security". There is little doubt that China's wish would be for Nepal to revoke the 'Gentleman's Agreement' and systematically deport the Tibetans who had crossed the border. But it is also certainly aware that, given Nepal's dependence on UN agencies and foreign donors, this scenario is hardly to become reality in the foreseeable future.

China's new policy objective hence is to ensure that Tibetans who make it across the border at least get penalised once they reach Nepal. Compared with the sums that Tibetans pay for the guides who organise border-crossing expeditions, the fines levied are low(5). But, unless donor countries to Nepal and the UN exert counter measures, the Nepali authorities will be under pressure to increase the fines, externally by China and perhaps also internally, since Tibetans who cross the border are not particularly popular and their endeavour is technically illegal. This is possible, because Nepal's legal system has no provision for refugees and the 'Gentleman's Agreement' is not legally binding.

China's long-standing practice is to create records that match its claims, even where these are not immediately enforceable, and then seek their validation by third parties. Consequently, beyond penalising new arrivals from Tibet, it is likely that through these fines, regardless of the extent to which they are really dissuasive, China's principal aim is to have the illegality of clandestine border crossings officially confirmed for the first time, thus backing the official Chinese stance on the subject and effectively undermining the 'Gentleman's Agreement' (which already falls short of expressly acknowledging the Tibetans as refugees). Speaking on condition of anonymity, a western diplomat in Kathmandu said: "I can't really see that the pressure on Tibetans who are here in Nepal is growing much, but it is clear that the 'Gentleman's Agreement' is rapidly getting undermined".

The embarrassment that clandestine border crossing causes China would be very easy to solve, namely by bringing its practices into line with its own laws and allowing Tibetans unrestricted mobility, regardless of the purpose of their travels; a right which is long taken for granted by ethnic Chinese (Han)(6). But, in Beijing's perspective, it would mean backing down and accepting defeat, as well as giving way to perceived threats.

In fact, even Tibetans who travel abroad legally on Chinese passports regularly face difficulties with the Nepali authorities. The large majority of them spend time in India where they meet the Dalai Lama but, in the knowledge that an Indian immigration stamp in their passport would label them as 'splittists' or 'anti-nationals', they normally leave their passports behind with friends and relatives in Kathmandu and cross the border into India by bribing border forces or slipping past border posts. In doing this, they are in an irregular situation during their whole stay in India, but, most importantly, they often face trouble re-entering Nepal on their way back to Tibet, particularly during times of the year that the Nepali authorities consider sensitive.

Between 10 and 30 march 2010, for example, a total of 172 Tibetans were stranded at the Indo-Nepali border while trying to re-enter Nepal. This was because the Nepali authorities feared these Tibetans might come to Nepal in order to take part in demonstrations to commemorate the Tibetan Uprising of 10 March 1959. The Tibetans could only re-enter Nepal after the Nepali human rights organisation HURON collected their passports in Kathmandu and brought them to the border and could confirm that the Tibetans were pilgrims and had had nothing to do with anti-China demonstrations.

Notes:
1: See: 'Border shootings and travel restrictions' www.tibetinfonet.net/content/update/58
2: For a full testimony about a clandestine border crossing, see: '"If I have to die on the way, so be it". Crossing the border' www.tibetinfonet.net/content/update/6045).
3: However, sources also state that border area permits have become more readily available through bribes. Also, Tibetans have gained skills in faking border permits and the recently introduced restrictions on photocopies in Lhasa are probably partly linked to this. (See: http://www.tibetinfonet.net/content/news/11280)
4: See: 'Nepal deploys armed police along Tibetan border' www.tibetinfonet.net/content/update/148
5: Each individual Tibetan in the group arrested in April paid around 16,000 Yuan (UK£1,611; US$2,339; EUR€1,901) to the guides who brought them across the border making the 2,600 NPRs appear negligible.
6: A very similar situation, in fact an even more restrictive one, exists for Uighurs in Eastern Turkestan (Xinjiang) whose rights to participate in the Haj pilgrimage to Mecca is very strongly constrained, as participants are strictly selected and can only take part in state-sanctioned and tightly regimented and monitored pilgrimages.