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大法官解釋表頭

(釋字第 454 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.454 
Date 1998/5/22
Issue Is the regulation which provides that an application for long-term residency and household registration submitted by a national residing outside of the Taiwan area and not being listed on the Taiwan household registry upon his/her entry into the Taiwan area may be denied, revoked or cancelled after being granted, and he/she may be deported after such denial or revocation of registration consistent with the people's rights to residence and movement that are protected by the Constitution?
Holding   The rationale of Article 10 of the Constitution, which stipulates that the people shall have the freedom of residence and migration, is to protect the people's freedom to choose and change their residence and to travel, including the right to exit or enter the country. Any restriction to the aforesaid freedom or right of the people must conform to the degree of necessity stipulated in Article 23 of the Constitution, and must be stipulated by the law. The Ministry of the Interior Ordinance No.13557 proclaimed on April 20, 1994, which amended the “Guidelines for the Nationals’ Temporary Entry into, Long-term Residence in, and Listing on the Household Registry of the Country,” provides, in Guideline 7 (originally Guideline 6 of Ordinance No.20077 of the said Ministry amended and proclaimed on June 18, 1993), that the government may refuse to grant long-term residency permits, cancel such permits, or cancel or deregister household registration to nationals not listed on the household registry of Taiwan. These are major restraints on the people's freedom of residence and migration, and thus must be authorized by the law or by authorities legally empowered to do so. With the exception of the provisions in Paragraph 1, Subparagraph 3, and Paragraph 2 which are necessary for the enforcement of special laws such as the National Security Act, the remaining provisions and provisions in Paragraph 2 concerning household registry, and Paragraph 3 concerning deportation upon expiry of visa cannot be reconciled with the objectives of the said constitutional principle, and thus shall become void within one year from the date of this Interpretation. With regard to nationals residing in mainland China, Hong Kong and Macau who wish to apply for a residency permit and household registration in Taiwan, they shall be governed by the relevant laws, if any.
Reasoning   The rationale of Article 10 of the Constitution, which stipulates that the people shall have the freedom of residence and migration, is to protect the people's freedom to select their residence, to change their residence and to travel, including the right to exit or enter the country. The degrees of restriction on the right of entry and residence for nationals listed on Taiwan's household registry, those residing overseas or residing in Hong Kong or Macau may differ reasonably, provided such restriction conforms to the principle of necessity stipulated in Article 23 of the Constitution, and is provided for by law or by rules prescribed by administrative bodies with the express authorization from legislative bodies. Article 8 of the Household Registration Act, amended and promulgated on July 17, 1973, states that: "household registration guidelines for nationals of the Republic of China who reside overseas shall be set by the Ministry of the Interior along with the Ministry of Foreign Affairs and the Overseas Chinese Affairs Commission" (which is abolished as of this date). It is a supplementary provision to the household registration guidelines and has been introduced by administrative bodies with authorization granted by legislative bodies based on actual needs. Administrative orders prescribed by administrative bodies shall fall within the objective and scope of such authorization, and shall not place excessive restrictions on the people's rights in violation of the empowering statute. However, the Ministry of the Interior had not furnished their guidelines, which prescription was authorized by the abovementioned Article, to the Legislative Yuan for approval. Guideline 6, Paragraph 1, of the Ministry of the Interior Ordinance No. 20077, amended and proclaimed on June 18, 1993, which was entitled "Guidelines for the Nationals' Temporary Entry into, Long-term Residence in, and Listing on the Household Registry of the Country," provides that: "Nationals who are eligible for long-term residency or filing application for household registration in the Taiwan region shall have their eligibility taken away, their residency permit cancelled and be ordered to exit the country within a specified time, if they fall under any of the following categories: (1) there is evidence suspecting that the person poses a threat to national security or social stability; (2) persons with criminal records; (3) unauthorized entrants; (4) persons who have applied for entry or entered using forged or altered documentation or fake identification; (5) there is evidence suspecting that the person participated in a fraudulent marriage or adoption scheme.” Paragraph 2 of the same Guideline provides: "In the event nationals falling under the aforementioned categories are registered on the household registry, such registration shall be cancelled and they shall be ordered to exit the country within a specified period." The Ministry of Interior Ordinance No.13557, which was proclaimed on April 20, 1994, and became effective on May 13 of the same year, amended the said Guidelines and provided in Guideline 7, Paragraph 1, that: "Applications by Taiwanese nationals for long-term residency permits in the Taiwan region may be refused if any of the following applies: (1) there is evidence suspecting that the person poses a threat to national security or social stability; (2) persons with criminal records; (3) unauthorized entrants; (4) persons applying for entry or having entered using forged or altered documentation or fake identification, (5) persons who have assisted in the illegal entry of another or provided their identification documents to another for the purpose of illegal entry, (6) there is evidence suspecting that the person participated in a fraudulent marriage or adoption scheme, (7) persons who fail the health examination, (8) persons who have participated in activities or work contradictory to the permitted objectives, and/or (9) persons who have overstayed their visas." Paragraph 2 of the same Guideline provides: "Applications by nationals, who are not listed on the household registry in the Taiwan region, for listing on the household registry may be refused if any of the foregoing Subparagraphs apply. However, applicants mentioned in Guideline 6, Paragraph 1, Subparagraphs 2 to 5 are not bound by this limitation." Paragraph 3 of the said Guideline states: "Approvals granted to nationals to whom any of Subparagraphs 1 to 7 of Paragraph 1 and the aforementioned Paragraph apply shall be cancelled by the Bureau of Immigration of the Ministry of the Interior (the "Bureau"), and the Bureau shall deregister such nationals' listing on the household registration. In the event such nationals have joined the armed forces, the Bureau shall notify the original conscription authorities and refer the matter to the Ministry of National Defense for cancellation of the conscription. The said nationals shall be ordered to leave the country within a specified period. Paragraph 4 of the same Guideline states: "The non-permissive long-term residency period referred to in Paragraph 1, Subparagraphs 8 and 9, is one year from the date of exit." "Nationals not listed on the household registry of the Taiwan region" referred to in Guideline 7, Paragraph 1, of the current Guidelines means, according to Guideline 3 of the same Guidelines, (1) nationals residing overseas or in Hong Kong or Macau who have never had a household registry; or (2) people who have become citizens of the Republic of China. In the same Guidelines, Guideline 7, Paragraph 1, Subparagraph 3, and Paragraph 2 provide that applications for long-term residency and household registration by illegal entrants may be withheld. This is necessary for the execution of Article 3, Paragraph 1, of the National Security Act, and is congruent with the objectives of the provisions in Article 10, Paragraph 1, of the Act Governing Relations between People of the Taiwan Area and Mainland Area and Articles 11 and 12 of the Act Governing Relations with Hong Kong and Macau, and does not breach the Constitution. Further, Guideline 7, Paragraph 1, Subparagraphs 1, 2, and 4 to 9, lack the legal foundation and authority of a law; hence, they are merely orders restricting the people's freedom to residence and movement. The relevant provisions regarding household registration in Paragraph 2 of the said Guideline and the provisions concerning orders to exit within a specified period as stipulated in Paragraph 3, except for the deportation provision found in Article 14 of the Act Governing Relations between People of the Taiwan Area and Mainland Area and Article 14 of the Act Governing Relations with Hong Kong and Macau, which purport to govern all nationals not listed on the Taiwan household registry, lack legal foundation and are in conflict with the constitutionally protected residence and movement rights of the people. The said provisions shall become void within one year from the date of this Interpretation. With regard to nationals residing in mainland China, Hong Kong and Macau who wish to apply for a residency permit and household registration in Taiwan, they shall be governed by the relevant laws, if any.

' Translated by Wei-Feng Huang of THY Taiwan International Law Offices.
Opinion
(Files)
Chinese only
 

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