The Border Control of Foreigners with the Administrative Act Patterns and the Judicial Relief Mechanism

• Main Authors: Wu, Chin-Wei, 吳晉瑋
• Other Authors: 劉宗德
• Format: Others
• Language: zh-TW
• Published: 2019
• Online Access: http://ndltd.ncl.edu.tw/handle/fmygwg

碩士 === 國立政治大學 === 法學院碩士在職專班 === 107 === Under the trend of globalization, the number of people moving and immigrating across the country has gradually increased and the issue of global refugees has not mitigated, which force many countries to face plenty of problems and internal opposition in coping with border control measures. And Taiwan can not be excluded. Especially in terms of Taiwan’s special historical factors and the status of cross-strait separation and opposition, the definition of foreigners and the asylum seekers of Mainland China, Hong Kong and Macao have caused our legal system and behavioral patterns of the border control to become increasingly complex and face enormous challenges. First of all, this essay will discuss about the establishment of multiple identities of foreigners and the defining criteria of "household registration" and "nationality" with the legislation of the Immigration Act, the Cross-Strait People's Relation Regulations and the Hong Kong-Macao Relation Regulations. Secondly, the protection and scope of foreigners’ rights will be analyzed from the perspective of international and domestic law. Especially through domestic doctrines and practical opinions, one can expound the freedom of movement of foreigners and interpret the practice of due process of law revealed by the Judicial Yuan (No. 710) as the core element of infringing on the freedom of migration of foreigners. In addition, the patterns of regulatory behaviors shall be taken into account. And the legal system as well as practical disputes of entry and exit control in Taiwan can be examined step by step, which helps put forward conclusions and related amendments to fully protect the freedom of movement of foreigners. Due to the fact that our current regulations of national border control adopts a "double entry permit system" for foreigners, and if our nationals have no household registration in Taiwan, the application of the system cannot be ruled out because of the lack of the household registration appearing to be equal to the threat to our national security. As a result, it is urgent to amend the Immigration Act regarding the aspect of the entry permit and the forbidden entry of the nationals without registered permanent residence in the Taiwan Areas. Besides, those foreigners who have legally entered the country have no opportunity to defend when faced with the ordered exit. Therefore, the Immigration Act shall be amended as soon as possible to offer the statement opportunities to those foreigners ordered to exit. On top of that, the review committee of the prohibition of entry and repatriation is based on the criteria of the prohibition reasons and the status of residence, so that the legislators shall take the identity of the alien and its basic rights as well as the severity of the infringement into account. In paticular, the nationals’ foreign spouses and minor children or asylum-seeking refugees should be included, since the border control measures will seriously infringe upon the family reunification rights and violate the principle of non-refoulement. By allowing the nationals’ foreign spouses and minor children or asylum-seeking refugees to attend the committee, they can have the chance to defend themselves and present evidence to practice the constitutional principle of due process of law.