Article 18, Paragraph 1, of the Act Governing Relations between Peoples from the Taiwan Area and the Mainland Area (hereinafter the “Cross-Strait Relations Act”), as amended on October 29, 2003, provides, “In any of the following situations, any people from the Mainland Area who enter into the Taiwan Area may be deported by the police authorities . . .” (the text of this Article was amended on July 1, 2009). Except where immediate actions are otherwise required in response to a threat to national security or social order, it is unconstitutional to mandatorily deport any person from the Mainland Area who has obtained permission to legally enter into the Taiwan Area without providing any defense opportunity to such person because it is in violation of the constitutional principle of due process of law and fails to comply with the meaning and purpose of the protection of migration freedom under Article 10 of the Constitution. Paragraph 2 of the same Article provides, “Any people from the Mainland Area specified in the preceding paragraph may be temporarily detained . . . “ (this is the same as Article 18, Paragraph 3, of the same Act after the amendment on July 1, 2009). This provision violates the principle of legal clarity because it does not express that temporary detention should be imposed only when mandatory deportation cannot be completed without such detention, and also because it does not specify the grounds for temporary detention. Providing no prompt judicial remedy to a detainee who is under temporary detention for a reasonable period in order to enforce deportation and failing to subject an extension of the foregoing temporary detention to judicial review violate both the principle of due process of law under the Constitution and the meaning and purpose of protecting physical freedom guaranteed under Article 8 of the Constitution. Moreover, failing to specify a certain period of time for temporary detention under the same Act is likely to excessively deprive a detainee of his physical freedom and is in violation of the principle of proportionality under Article 23 of the Constitution as well as the meaning and purpose of protecting physical freedom guaranteed under Article 8 of the Constitution. The aforementioned portion of Article 18, Paragraph 1, of the Cross-Strait Relations Act that is not consistent with this Interpretation, as well as the part of Paragraph 2 of the same Article with regard to temporary detention, shall be null and void no later than two years from the issuance of this Interpretation.

       Article 15 of the Enforcement Rules for the Act Governing Relations between Peoples from the Taiwan Area and the Mainland Area (hereinafter the “Enforcement Rules of the Cross-Strait Act”) provides, “Persons entering into the Taiwan Area without permission as referred to in Article 18, Paragraph 1, Subparagraph 1, of the Cross-Strait Relations Act shall include those who enter into the Taiwan Area on fake or forged passports, travel papers, or other similar certifying documents, or by fraudulent marriage for which the registration or permission has been revoked or annulled as there exists sufficient evidence to establish that said marriage is false due to collusion, or by other illegal means.” Article 10, Subparagraph 3, of the Regulations Governing the Approval of Entry of People from the Mainland Area into the Taiwan Area provides, “An application filed by any person from the Mainland Area who receives an interview for entry into the Taiwan Area may be denied, and any entry permission already granted may be revoked or annulled in any of the following situations: . . . (3) after conducting the interview, no fact shows that the applicant lives together with the spouse or there are significant discrepancies in the statements of the applicant and the spouse” (this provision is the same as Article 14, Subparagraph 2, of the same Regulations amended on August 20, 2009). Article 11 of the same Regulations stipulates, “Any person from the Mainland Area who receives an interview notification upon arrival at the airport or seaport, or after entering into the Taiwan Area will be subject to mandatory deportation or be ordered to exit within ten days, any entry permission already granted may be revoked or annulled, and the entry and exit permit may be cancelled if any of the situations referred to in the preceding Article exists” (Article 15 of the same Regulations amended and promulgated on August 20, 2009, removed the words “will be subject to mandatory deportation or be ordered to exit within ten days”). These provisions are consistent with Article 18, Paragraph 1, of the Cross-Strait Relations Act, as amended on October 29, 2003, and therefore do not violate the principle of legal reservation.

       Article 5 of the Rules Governing Enforced Deportation of People from Mainland China, Hong Kong, and Macau, as promulgated on October 27, 1999, provides, “A person may be temporarily detained prior to enforced deportation in any of the following situations: (1) any of the situations referred in Paragraph 2 of the preceding Article exists; (2) enforced deportation in accordance with laws is impossible due to a natural disaster or a breakdown of aircrafts or vessels; (3) the resident from the Mainland Area, Hong Kong, or Macau subject to mandatory deportation has no travel permit to enter the Mainland Area, Hong Kong, Macau, or any third country;  (4) any other reason rendering an immediate mandatory deportation impossible” (the amendment of March 24, 2010, moved this provision to Article 6 of the same Rules, which provides, “People from the Mainland Area, Hong Kong, or Macau subject to mandatory deportation may be temporarily detained prior to repatriation in any of the following situations: (1) enforced deportation in accordance with laws is impossible due to a natural disaster or a breakdown of aircrafts or vessels; (2) the resident from the Mainland Area, Hong Kong, or Macau subject to mandatory deportation has no travel permit to enter the Mainland Area, Hong Kong, Macau, or any third country; (3) any other reason rendering an immediate mandatory deportation impossible”). This Article violates the principle of legal reservation because it has not been explicitly authorized by a law prescribing the grounds for temporary detention. Therefore this provision shall be null and void no later than two years from the issuance of this Interpretation.

       Article 8, Paragraph 1, of the Constitution provides, “Physical freedom shall be guaranteed to the people. In no case except that of flagrante delicto, which shall be separately prescribed by law, shall any person be arrested or detained other than by judicial or police authorities in accordance with procedures prescribed by law. No person shall be tried or punished other than by a court in accordance with procedures prescribed by law. Any arrest, detention, trial, or punishment not carried out in accordance with procedures prescribed by law may be resisted.” In order to comply with the meaning and purpose of the foregoing constitutional provision, any disposition by the government that deprives or restricts a person’s physical freedom—irrespective of whether the person is facing criminal charges—must have a legal basis and also fulfill required judicial procedures or other due process requirements (see J.Y. Interpretations Nos. 384, 588, 636, and 708). Moreover, the principle of due process of law under the Constitution requires legislators to promulgate adequate procedures after taking into considerations all factors including the type of underlying fundamental rights, the intensity and scope of the restrictions, the public interests pursued, the proper functions of the decision-making organs, and the availability of alternative procedures or possible costs of the possible procedures (see J.Y. Interpretation No. 689). Furthermore, Article 10 of the Constitution provides, “The people shall have freedom of residence and of change of residence.” This Article means that people have the freedom to choose their residence and enjoy their private lives without intrusion, and they also have the freedom to move or reside anywhere according to their free will (see J.Y. Interpretation No. 443).

       The Preamble of the Additional Articles of the Constitution stipulates, “To meet the requirements of the nation prior to national unification, the following articles of the Constitution are added or amended to the Constitution in accordance with Article 27, Paragraph 1, Subparagraph 3; and Article 174, Subparagraph 1, of the Constitution: . . .” Article 11 of the Additional Articles of the Constitution provides, “Rights and obligations between the people of the Chinese mainland area and those of the free area, and the disposition of other related affairs may be specified by law.” The Cross-Strait Relations Act is the sui generis law enacted to regulate the rights and obligations between peoples from the Mainland Area and the Taiwan Area, as well as the disposition of other related affairs, prior to the nation’s reunification (see J.Y. Interpretation No. 618). Article 10, Paragraph 1, of the Cross-Strait Relations Act provides, “No people from the Mainland Area may enter into the Taiwan Area without permission of the competent authorities.” Given that the two sides of the Taiwan Strait are currently governed by different political entities, restrictions are therefore imposed on the freedom of people from the Mainland Area to enter into the Taiwan Area (see J.Y. Interpretations Nos. 497 and 588). However, after formally obtaining permission from the competent authorities and having legally entered the Taiwan Area, the freedom of movement of people from the Mainland Area should in principle be protected by the Constitution (see Article 12 and Paragraph 6 of the General Comment No. 15 of the UN International Covenant on Civil and Political Rights). Except where immediate actions are otherwise required in response to a threat to national security or social order, the mandatory deportation of a person from the Mainland Area who legally entered into the Taiwan Area must fulfill corresponding due process requirements (see Articles 13 of the UN International Covenant on Civil and Political Rights; Article 1 of Protocol No. 7 to the European Convention on Human Rights). In particular, mandatory deportation of Mainland spouses who have been permitted to legally enter into the Taiwan Area requires extra caution because it significantly affects marriages and family relationships. Article 18, Paragraph 1, of the Cross-Strait Relations Act, as amended on October 29, 2003, provides, “In any of the following situations, any people from the Mainland Area who enter into the Taiwan Area may be deported by the police authorities; provided, however, that prior approval shall be obtained from the judicial authorities where a judicial proceeding thereof is pending: (1) entering into the Taiwan Area without permission; (2) entering into the Taiwan Area with permission and staying or residing beyond the authorized duration; (3) engaging in any activity or employment inconsistent with the purposes of the permission; (4) there is sufficient evidence to establish that a crime has been committed; (5) there is sufficient evidence to establish that there is a threat to national security or social stability” (this Article was amended on July 1, 2009, only the text of Paragraph 1 was revised). On the other hand, Article 18, Paragraph 2, of the same Act as amended on July 1, 2009, stipulates, “Before the National Immigration Agency of the Ministry of the Interior deports any people from the Mainland Area who, having obtained permission to reside in and to enter into the Taiwan Area, is in any of the situations specified in Subparagraphs 3 to 5 of the preceding paragraph, it may convene a review meeting and provide an opportunity for the person concerned to state his/her opinions.” Apart from the aforementioned Article 18, Paragraph 1, of the Cross-Strait Relations Act, where immediate actions are required in response to a threat to national security or social order, mandatory deportation of any person from the Mainland Area who has obtained permission to legally enter into the Taiwan Area without requiring the police authorities to provide any defense opportunity to the deportee prior to his repatriation violates the constitutional principle of due process of law and also fails to comply with the meaning and purpose of the protection of residence and migration freedom guaranteed under Article 10 of the Constitution. The portions of Article 18 that are not consistent with this Interpretation shall be null and void no later than two years from the issuance of this Interpretation.

       Article 18, Paragraph 2, of the Cross-Strait Relations Act, as amended on October 29, 2003, provides, “Any people from the Mainland Area specified in the preceding paragraph may be temporarily detained prior to enforced deportation . . .” (this is the same as Article 18, Paragraph 3, of the same Act amended on July 1, 2009). A temporary detention is a form of deprivation of people’s physical freedom because it confines a detainee at a certain place in order to isolate him from the outside world (see the Rules Governing Establishment and Administration of Shelters for People from Mainland China, Hong Kong, and Macau, promulgated by the Ministry of the Interior). In order to comply with the principle of legal reservation, the grounds for temporary detention must be prescribed by law or by regulations explicitly authorized by law (see J.Y. Interpretation Nos. 443 and 523). Moreover, the content of the law must be clear and specific in order to meet the principle of legal clarity (see J.Y. Interpretation Nos. 636 and 690). The aforementioned Paragraph 2 of Article 18 of the Cross-Strait Relations Act, which allows pre-deportation temporary detention of any person from the Mainland Area receiving a removal order, is in violation of the principle of legal clarity because the content of this provision is overbroad. This provision does not express that temporary detention should be imposed only when mandatory deportation cannot be completed without such detention. Nor does this provision specify the grounds for temporary detention. Physical freedom is a prerequisite to the exercise of any of the freedoms and rights protected by the Constitution. Under the Constitution, in order for a government disposition that is explicitly prescribed by law as restricting a person’s physical freedom to be permissible, it must comply with due process and the principle of proportionality under Article 23 of the Constitution (see J.Y. Interpretation Nos. 384 and 588). Given that restrictions on physical freedom of criminal defendants and non-criminal defendants differ in terms of their purpose, methods, and procedure, the required judicial procedures and other due process requirements for restrictions on physical freedom of non-criminal defendants and of criminal defendants need not be identical (see J.Y. Interpretation Nos. 588 and 708). In order to prevent escape and to achieve quick repatriation, it is reasonable and necessary that police authorities may temporarily detain any person from the Mainland Area receiving a removal order for a reasonable period for the repatriation operation in accordance with the aforementioned Article 18, Paragraph 2, of the Cross-Strait Relations Act. Such temporary detention need not be subject to court review. Nevertheless, in order to ensure compliance with the meaning and purpose of due process under Article 8, Paragraph 1, of the Constitution, a detainee under the foregoing temporary detention should be afforded a remedial opportunity to request immediate judicial review of the detention. Therefore, when imposing temporary detention according to Article 18, Paragraph 2, of the Cross-Strait Relations Act, the police authorities should send the detainee a written notice with the rationale of the detention, as well as the channels for requesting judicial relief. The notice shall also be given to the detainee’s designated relatives or relevant agencies in Taiwan. If a detainee objects to the temporary detention or requests judicial review while in detention, the temporary detention authorities must transfer the detainee to the court within twenty-four hours for speedy review whether detention should be imposed. In the event that the detention period is about to expire and a detainee has yet to be repatriated, the temporary detention authorities must transfer the detainee to the court for review whether detention should be extended, and the authorities may continue detaining the detainee after the court so orders (see J.Y. Interpretation No. 708). Furthermore, because the Cross-Strait Relations Act does not specify a certain period of time for temporary detention, it fails to comply with the purpose of “speedy repatriation of detainees,” is likely to excessively deprive a detainee of his physical freedom, and violates the principle of proportionality under Article 23 of the Constitution as well as the meaning and purpose of protecting physical freedom that is guaranteed under Article 8 of the Constitution. In light of the foregoing, the relevant authorities should review and amend the relevant laws in accordance with the intent of this Interpretation within two years from the issuance of this Interpretation. The amendments, which shall take into consideration the practical requirements of pre-deportation operations and also avoid excessive interference with a detainee’s physical freedom, should prescribe the specific grounds for temporary detention by law or by regulations explicitly authorized by law, and also prescribe the following: a reasonable period for the repatriation operation as well as a reasonable period of temporary detention and its corresponding due process. The aforementioned portion of Article 18, Paragraph 2, of the Cross-Strait Relations Act, with regard to temporary detention, shall become null and void in case the amendment has not been promulgated by the time set forth in this Interpretation.

       A restriction placed on physical freedom must be prescribed by law or by regulations explicitly authorized by law (see J.Y. Interpretation Nos. 443 and 559). The specificity of the authorization shall not be confined to the language of the statutory provision but shall be determined by the totality of statutory interpretation or the relevant meaning of the statute as a whole (see J.Y. Interpretation Nos. 612 and 676). Article 95-4 of the Cross-Strait Relations Act only provides a general authorization to the Executive Yuan to formulate enforcement rules of the Cross-Strait Relations Act. Nonetheless, the comprehensive approach of the Cross-Strait Relations Act suggests that the Cross-Strait Relations Act has authorized the Executive Yuan to clarify the meaning of “entering into the Taiwan Area without permission” under Article 18, Paragraph 1, Subparagraph 1, of the Cross-Strait Relations Act, as amended on October 29, 2003, in the Enforcement Rules of the Cross-Strait Relations Act in order to effectively enforce the law and to administer the borders. Article 15 of the Enforcement Rules of the Cross-Strait Act provides, “Persons entering into the Taiwan Area without permission as referred to in Subparagraph 1 of Paragraph 1 of Article 18 of the Cross-Strait Relations Act shall include those who enter into the Taiwan Area on fake or forged passports, travel papers, or other similar certifying documents, or by fraudulent marriage for which the registration or permission has been revoked or annulled as there exists sufficient evidence to establish that said marriage is false due to collusion, or by other illegal means.” This provision aims to clarify that persons “entering into the Taiwan Area without permission” refers to those who initially illegally entered into the Taiwan Area. The content of this provision does not go beyond the literal meaning of Article 18, Paragraph 1, Subparagraph 1, of the Cross-Strait Relations Act, and therefore does not violate the principle of legal reservation.

       Article 11 of the Regulations Governing the Approval of Entry of People from the Mainland Area into the Taiwan Area (hereinafter the “Regulations Governing Entrance Approval”), as promulgated on March 1, 2004, provides, “Any person from the Mainland Area who receives an interview notification upon arrival at the airport or seaport, or after entering into the Taiwan Area will be subject to mandatory deportation or be ordered to exit within ten days, any entry permission already granted may be revoked or annulled, and the entry and exit permit may be cancelled in any of the situations referred to in the preceding Article” (this provision is the same as Article 15 of the same Regulations amended on August 20, 2009, and the text of this provision was corrected by removing the words “will be subject to mandatory deportation or be ordered to exit within ten days”). Article 10, Subparagraph 3, of the same Regulations stipulates, “An application filed by any person from the Mainland Area who receives an interview for entry into the Taiwan Area may be denied, and any entry permission already granted may be revoked or annulled in any of the following situations: . . . (3) after conducting the interview, no fact shows that the applicant lives together with the spouse or there are significant discrepancies in the statements of the applicant and the spouse” (this provision is the same as Article 14, Subparagraph 2, of the same Regulations amended on August 20, 2009). Article 10-1 of the Cross-Strait Relations Act provides, “Any people from the Mainland Area who applies to enter into the Taiwan Area for family reunion, residency, or permanent residency shall be interviewed, fingerprinted, and registered for record; when a person fails to be interviewed or fingerprinted, an application for family reunion, residency, or permanent residency shall not be granted. Governing rules thereof shall be prescribed by the competent authorities.” Accordingly, an interview for entrance approval is part of the procedures required by law for an application filed by any person from the Mainland Area to enter into the Taiwan Area for family reunion, residency, or permanent residency. Considering the comprehensive approach of the Cross-Strait Relations Act, the competent authorities may revoke or annul the entry permission of a person from the Mainland Area in accordance with laws if a finding is made following the interview that the interviewee “entered into the Taiwan Area without permission,” as prescribed under Article 18, Paragraph 1, Subparagraph 1, of the Cross-Strait Relations Act, as amended on October 29, 2003. Moreover, Article 17, Paragraph 1, of the Cross-Strait Relations Act provides, “Any people from the Mainland Area who are spouses of any people from the Taiwan Area may apply to enter into the Taiwan Area for family reunion and may apply for spouse residency in the Taiwan Area in any of the following situations: (1) the applicant has been married for at least two years; or (2) the applicant has already born children” (the amendment on July 1, 2009, changed the text of this provision to “Any people from the Mainland Area who are spouses of any people from the Taiwan Area may apply to enter into the Taiwan Area for family reunion in accordance with laws and regulations and may apply for spouse residency in the Taiwan Area after obtaining permission to enter into the Taiwan Area”). Paragraph 7 of the same Article provides, “For any people from the Mainland Area who are permitted to have spousal residency, long-term residency, or permanent residency in accordance with Paragraph 1, if there exists sufficient evidence to establish that his/her marriage is false due to collusion, the permission for his/her spousal residency, long-term residency, permanent residency, and household registration shall be revoked and, in addition, he/she shall be deported” (the amendment on July 1, 2009, only corrected the text of this provision). All of the above provisions suggest that the so-called “significant discrepancies in the statements” prescribed under Article 10, Subparagraph 3, of the aforementioned Regulations Governing Entrance Approval refers to the situation where there are facts sufficient to establish that the applicant and the spouse colluded to enter into a sham marriage from the beginning, but the police authorities issued the entry permission without discovering the marriage fraud. Article 10, Subparagraph 3, of the Regulations Governing Entrance Approval does not impose any additional condition on top of the “entering into the Taiwan Area without permission” requirement prescribed under Article 18, Paragraph 1, Subparagraph 1, of the Cross-Strait Relations Act, as amended on October 29, 2003, and therefore does not violate the principle of legal reservation.

       Article 5 of the Rules Governing Enforced Deportation of People from Mainland China, Hong Kong, and Macau (hereinafter the “Rules Governing Enforced Deportation”), as promulgated on October 27, 1999, provides, “A person may be temporarily detained prior to mandatory repatriation in any of the following situations: (1) any of the situations referred in Paragraph 2 of the preceding Article exists; (2) completing mandatory deportation in accordance with laws is impossible due to a natural disaster or a breakdown of aircrafts or vessels; (3) the resident from the Mainland Area, Hong Kong, or Macau subject to mandatory deportation has no travel permit to enter the Mainland Area, Hong Kong, Macau, or any third country; (4) any other reason rendering an immediate mandatory deportation impossible” (the amendment on March 24, 2010, moved this provision to Article 6 of the same Rules, which provides, “People from the Mainland Area, Hong Kong, or Macau subject to mandatory deportation may be temporarily deported prior to repatriation in any of the following situations: (1) completing mandatory deportation in accordance with laws is impossible due to a natural disaster or a breakdown of aircrafts or vessels; (2) the resident from the Mainland Area, Hong Kong, or Macau subject to mandatory deportation has no travel permit to enter the Mainland Area, Hong Kong, Macau, or any third country; (3) any other reason rendering an immediate mandatory deportation impossible”). A temporary detention constitutes a form of deprivation of physical freedom. Grounds for temporary detention must be prescribed by law or by regulations explicitly authorized by law. In the event that the grounds for temporary detention are prescribed by regulations authorized by law, the degree of clarity in the authorizing provision should correspond with the impact on people’s rights by the authorized regulations (see J.Y. Interpretation No. 680). Article 18, Paragraph 6, of the Cross-Strait Relations Act, as amended on October 29, 2003 (the amendment on July 1, 2009, only moved this provision to Paragraph 7 of the same Article), only authorizes the Ministry of the Interior to prescribe the Rules Governing Enforced Deportation, as well as rules governing the establishment and administration of detention centers. However, this provision does not expressly authorize the competent authorities to use the foregoing Rules Governing Enforced Deportation as a supplementary regulation to provide the grounds for temporary detention. Thus, Article 5 (which is now Article 6) of the aforementioned Rules Governing Enforced Deportation violates the principle of legal reservation because it has not been explicitly authorized by law to prescribe the grounds for temporary detention. This provision shall be null and void no later than two years from the issuance of this Interpretation.

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＊ Translated by Yen-Chia CHEN and Margaret K. Lewis.