COR Point 62 Administration of Justice (Articles 9, 10 and 14)
After the release of Interpretation No 708 by the Constitutional Court on February 6, 2013, the Immigration Act was revised to reduce the period of administrative detention to 15 days. If a detained person cannot be repatriated within 15 days, immigration authorities can apply to judges for an extension, but the period of detention cannot exceed 45 days. If repatriation still cannot take place, immigration authorities can apply for another extension of 40 days, but the grand total of days detained cannot exceed 100 and immigration authorities must allow detained persons who object to being detained the right to apply for “habeus corpus.”130
Point 62 of the Conclusions and Recommendations and Interpretation No. 710 issued by the Constitutional Court issued July 5, 2013 maintain that the lack of a ceiling on the days of temporary detention and lack of provision for judicial review for citizens of the People`s Republic of China clearly constitute discriminatory treatment compared to persons of other nationalities. Therefore, the Act Governing Relations between the People of the Taiwan Area and the Mainland Area has also been revised so that its Article 18-1 mandates that the number of days of temporary detention cannot exceed 150 days. However, this provision is still discriminatory compared to people of other nationalities.
There are only three scheduled repatriations by ship between Taiwan and China annually and this number has been reduced to two in some years. As a result, the time needed for repatriation is extended and the days of temporary detention hereby increased. In order to ensure that the conditions of temporary detention for PRC citizens are consistent with those of other nationalities, the Mainland Affairs Council should carry out further negotiations with the Chinese government.
With regard to foreigners whose period of temporary detention has exceeded the legal ceiling or for whom there is no necessity for detention, the National Immigration Agency (NIA) should cooperate with civic organizations permit release on bond to the custody of others and provide alternative shelters.
- See Article 38-4 of the Immigration Act.