COR Point 46 Protection and Assistance to Family (ICESCR Article 10)
A rational naturalization system
Besides Article 9 of the Nationality Act which is notorious as a generator of stateless persons,74 the Ministry of the Interior (MOI) in 2012 proposed revisions to the act which raised several of the thresholds for naturalization. In late 2014, during discussions in the Interior Affairs Committee of the Legislative Yuan75 regarding Article 3 of the Nationality Act,76 the MOI persisted in using the abstract phrase “decent and correct conduct” as a prerequisite for foreign citizens, including foreign spouses, for naturalization. Moreover, the package of draft revisions added a new explanation indicating that the MOI possessed the highest degree of discretionary power in deciding whether an applicant’s conduct was “decent and proper.” Such a declaration was tantamount to an unlimited expansion of the executive branch’s power to judge whether the people should be granted Taiwan nationality. Moreover, its impact also affected foreign spouses who had already obtained naturalization as the MOI Department of Household Registration (DOHR) has the power to revoke the nationality of any foreign citizen who has obtained Taiwan nationality in the first five years after naturalization at any time if the DOHR determines that his or her conduct has not been “decent and proper.” We urge the MOI to revise the definition of “decent and proper conduct” in Article 3 of the Nationality Act and reduce its own arbitrary administrative power to revoke the nationality of naturalized citizens and, in tandem, shorten the probationary five year period for naturalized citizens during which their nationality can be revoked. In addition, Article 4 of the Nationality Act77 mandates that foreign spouses who divorce after suffering family violence or are widowed turn into ordinary foreign citizens and must meet the harsh fiscal certification requirements.78 In the above-mentioned package of draft revisions, the MOI proposed that Article 4 be amended to permit the government to recognize that foreign spouses who are victims of family violence or are widowed should have a naturalization standard for certification of sufficient fiscal capability that is more relaxed than ordinary foreign citizens.79 The precondition is that the now single foreign spouse must “furnish maintenance” for the parents of the deceased spouse. However, this draft stipulation does not provide a clear definition of what the term “furnish maintenance” means. If the foreign spouse suffers harassment from the Taiwanese family or the method used to ‘furnish maintenance” for the parents of the deceased spouse is not recognized by the government, he or she could lose the special right for naturalization, a development that could in turn affect the question of child custody. In addition, according to Article 1115 of the Civil Code regarding the obligation to furnish maintenance,80 the parents of the spouse are ranked in seventh place in the order in which persons are to perform such obligation. Since this article provides that the foreign spouse should place a higher priority on furnishing maintenance to her own children and not the parents of her deceased spouse, the MOI should delete the term “furnish maintenance to parents.”
The MOI’s version of draft amendments to the Nationality Act establishes layer upon layer of barriers to the naturalization of widowed foreign spouses in contravention to Articles 23 and 24 of the ICCPR which requires States parties to ensure protection of families and children as well as Articles 2 and 5 of CEDAW81 and General Recommendation No 21 for CEDAW82 regarding protection for the nationality of women and Article 9 of the Covenant for the Rights of the Child (CRC)83 which mandates that States Parties to “ensure that a child shall not be separated from his or her parents against their will.”
Protection for family unity
Family unity is not simply limited to the situation of foreign minor children coming to Taiwan and applying for residency. The government still needs to deal with the inability of minor children of Taiwan nationality whose fathers or mothers are unable to accompany them to reside in Taiwan. According to Article 31 of Immigration Act,84 the residence rights of divorced foreign spouses is decided by the guardianship of his or her own children with registered permanent residence in Taiwan even if the divorced foreign spouse in question does not have certification of strong fiscal capability.85 If the children are successfully naturalized before they become adults, the foreign spouse can only legally reside in Taiwan until they reach 20 years of age. On one hand, according to Article 23 of the Immigration Act and Article 13 of the Enforcement Rules for the Issuance of ROC Visas to Foreign Passport Holders,86 “the foreign parents of minor citizens” cannot use “residence visas” or “visitor visas” issued by overseas mission to enter Taiwan because the foreign national’s status in applying for “residency based on familial relations” must be “the spouse of a citizen of our country” or “a minor child of our country.” Based on Article 23 of the Immigration Act, the MOI National Immigration Agency (NIA) issues “alien resident certificates” (ARCs) based on the above-mentioned standards. This state of affairs contravenes Articles 17 and 23 of the ICCPR and Articles 3, 9, 12 and 18 of the CRC.
There is no conflict between the objectives of combatting human trafficking and improving the right of unity of genuinely married families. The Enforcement Rules for the Issuance of ROC Visas to Foreign Passport Holders should be revised as soon as possible in order to expand the scope of application of resident visas or visitor visas transformed into resident visas. In addition, the MOI should relax the regulations on residency in Articles 23 and 31 in order to allow foreign parents who are actually furnishing maintenance for Taiwanese minor children to apply for residence or extended residence in Taiwan to take care of and nurture their children. Only in this way can the State guarantee the right of family unity for immigrant families and avoid marriage immigrants from falling into statelessness.
- Article 9 of the Nationality Act requires applicants for naturalization, except those from the People’s Republic of China, to provide certification of their abandonment of their previous nationality before applying for naturalization.
- Proceedings of 28th Meeting of the Interior Affairs Committee of the Legislative Yuan, December 18, 2014 http://ppt.cc/kovWC.
- See Article 3 of the Nationality Act.
- See Article 4 of the Nationality Act.
- See Article 7 Paragraph 2 of the Enforcement Rules for the Nationality Act.
- See Article 7 Paragraph 1 of the Enforcement Rules for the Nationality Act.
- See Article 1115 of the Civil Code.
- See Article 2, Paragraph 5 of the Convention on the Elimination of All Forms of Discrimination against Women.
- See Paragraph 6 of General Recommendation 21 on the Convention on the Elimination of All Forms of Discrimination against Women.
- See the Convention on the Rights of the Child.
- See Article 31 of the Immigration Act.
- See Article 7 of the Enforcement Rules for the Nationality Act.
- See Article 13 of the Enforcement Rules for the Issuance of ROC Visas to Foreign Passport Holders.