Yes — in principle, a foreign national sentenced in China can ask to serve the rest of the sentence in their home country, but only through a formal “transfer of sentenced persons” arrangement. It is not a right: it needs the consent of the prisoner and the approval of both countries, and it only works where China has a treaty or another legal basis with that country. It is also a different mechanism from extradition.

What Is a Transfer of Sentenced Persons?

Transfer of sentenced persons is a form of international judicial cooperation. China’s International Criminal Judicial Assistance Law, adopted on 26 October 2018, includes a dedicated chapter on it. The idea is humanitarian: a foreign inmate facing years in a Chinese prison can, with consent, be moved home to serve the remaining term where family, language and culture are familiar.

Two features matter. First, the transfer is voluntary on the prisoner’s side — the law makes clear that transfer happens only if the sentenced person agrees to return. Second, both the sentencing state (China) and the receiving state must agree. It is a state-to-state decision, not something an inmate can demand.

What Has to Be in Place?

In practice, the following usually need to be satisfied:

  • A treaty or other legal basis between China and the home country (many countries have bilateral transfer treaties);
  • A final, enforceable judgment — with no pending appeal;
  • The prisoner’s written consent;
  • The offence is punishable in both countries; and
  • Part of the sentence is still to be served.

Under the International Criminal Judicial Assistance Law, the competent Chinese authority, together with the relevant departments, decides whether to agree to an incoming or outgoing transfer request. Once a decision to agree is made, the requesting state and the sentenced person are notified in writing.

What This Means in Practice

A transfer does not erase the conviction and usually does not shorten the sentence. Once transferred, the sentence continues to be enforced under the home country’s law, as adjusted by the treaty. Transfer applications are slow and depend on diplomatic cooperation, so timing matters.

(Illustrative scenario.) A foreign national is convicted of a drug offence in China and asks the consulate for help after sentencing. The realistic route is usually not early release, but a treaty-based transfer request routed through both governments — and only if the home country has a transfer treaty with China and the prisoner consents in writing. If no treaty exists, a formal transfer is generally not available.

The key is to raise the transfer question early, in writing, and to check whether your country actually has a transfer treaty with China.

FAQ

Q: Is transfer the same as extradition?

A: No. Extradition moves a person to face trial or punishment; a transfer of sentenced persons moves an already-convicted prisoner home to serve the remaining sentence.

Q: Do I have a right to be transferred?

A: No. It requires your consent, a legal basis between the two countries, and the agreement of both states.

Q: Will it shorten my sentence?

A: Generally no. The sentence continues under the receiving country’s law as adjusted by the treaty.

Q: What if my country has no treaty with China?

A: Then a formal transfer is usually not available, though other forms of consular and judicial cooperation may still apply.

Q: When should I raise it?

A: Early — after the judgment is final but before most of the sentence has been served, because the process is slow.

Wang Guan | Co-founder, Beijing Haolue Law Firm | +86 17813108512