In response to an information request jointly submitted by the Global Detention Project and Amnesty International Taiwan, the Ministry of the Interior reported that to date they have not begun systematically testing new immigration detainees for Covid-19. However, the agency also reported, “Before people are detained, they must be asked about their health condition, undergo […]
Taiwan, Province of China: Covid-19 and Detention
The government has taken extraordinary measures to contain and combat the COVID-19 pandemic, having started testing people for the virus in January when the first case was reported. As of 7 April, there were 376 cases and five deaths (as the UN does not recognize it as a sovereign state, the WHO does not publish […]
Taiwan, Province of China: Covid-19 and Detention
Taiwan’s National Immigration Agency (NIA) announced the start of a three-month amnesty programme from 1 April until 30 June 2020. This programme is for foreign nationals who have overstayed their visas, allowing them to pay smaller fines and avoid detention should they report to immigration authorities during the grace period. The maximum penalty will be […]
Last updated: October 2016
Taiwan, Province of China
- Introduction
- Law, Policies, and Practices
- Detention Infrastructure
INTRODUCTION
Immigration detention is an important tool of immigration control in Taiwan, Province of China. However, because of opposition by China (People’s Republic of China) to recognising it as a sovereign state, the region is prevented from being a member of the United Nations and thus its detention practices are not subject to relevant international human rights legal instruments.[1] Nevertheless, it has long aspired to be a part of the UN system and it has included key provisions from human rights law in its legislation.
There appears to be a trend toward de-emphasising the use of immigration detention, and the National Immigration Agency claims to detain “only if absolutely necessary.” Official sources report declining numbers of detainees since 2011: 9,451 “illegal foreigners” were detained in 2012; 9,346 in 2013; 7,090 in 2014; and 7,171 during the first ten months of 2015. Likewise the average number of days foreigners are kept in immigration detention dropped from 44.12 in 2012 to 27.84 days for the ten months ending October 2015. For “Mainland residents” (citizens of the People’s Republic of China), average stay dropped from 80.17 in 2012 to 51.94 during the same period. There have also been decreases in deportations: 12,756 were expelled in 2012; 8,166 in 2014; and 7,500 during the first ten months of 2015. [2]
Government sources report that 39,125 people where held in the main island’s immigration detention centres between 2007 and 2011 and another 65,933 in “temporary shelters” on smaller islands closer to mainland China.[3] There have been cases of people being detained for very long periods of time. In 2008, a Taiwanese civil society organisation assisted a Sierra Leone citizen who had been held in immigration detention for more than 10 years.[4]
Advocates have had some success in pushing reforms. In 2015, the country adopted a law ending the detention of various vulnerable groups, including young children and women who are more than five weeks pregnant.[5]
The region was an original member of the United Nations and the UN Security Council. But in October 1971, the General Assembly recognized the People’s Republic of China as the only legitimate representative of the country.[6] Thus the region's government has made various unsuccessful attempts to participate in UN activities since then.[7] Its most recent attempts to register ratification of two core human rights treaties were turned down by the UN Secretary-General in 2009.[8]
Notwithstanding this rejection, the Legislative Yuan (parliament) adopted an Implementation Act making the Covenants on Civil and Political (ICCPR) and on Economic, Social and Cultural Rights legally binding. The act included provisions for a “human rights reporting system to regularly monitor the implementation of the covenant.”[9] Despite the UN legal monitoring vacuum, the region's domestic law includes a legal framework for immigration detention. The 2012 and 2016 government reports on implementation of ICCPR provide data and statistics on immigration detention.[10]
LAWS, POLICIES, AND PRACTICES
Grounds and length of detention. The Immigration Act adopted in 1999 contains detention and deportation provisions in Article 38.[11] Grounds for detention include inability to present valid travel documents and “evidence to suggest loss of whereabouts, escaping from authority, or reluctance to leave the country under own free will.” Detention is divided into three periods: temporary (up to 15 days); continuous (from 16 to 60 days); and extended (from 61 to 100 days). Decisions within the temporary phase are at the discretion of the Immigration Agency, under the Ministry of Interior. Detention beyond 15 days is by court order.[12]
Article 38 was revised in 2011 and set a limit of 120 days for administrative detention of aliens (except for nationals of the Peoples’ Democratic Republic of China, who can be detained indefinitely).[13]
In 2013, a group of 10 foreign independent experts reviewed the region's government’s first reports on implementation of the ICCPR. In their concluding observations and recommendations, they said that orders under the Immigration Act should be subject to judicial review and that the 120-day limit for administrative detention of aliens should be equally applied to nationals from the People’s Republic of China.[14]
Legal challenges were mounted by civil society on prolonged detention on the constitutionality of the Act, which led to the adoption of amendments in 2011 and 2015.[15] The 2015 amended law reduced the length of immigration detention from120 to 100days; it provides for the suspension of detention for persons with mental or physical health problems, pregnant women as well as those who have recently given birth or suffered a miscarriage, and children under 12.[16] Due to Taiwan’s geo-political situation, there are specific provisions concerning people from Mainland China, which allows them to be placed “in temporary custody before deportation or ordered in addition to perform labour services.” Under separate legislation “Mainland residents” may be detained over the 100 days limit for up to 150 days.[17]
Procedural safeguards. The experts who reviewed the government report on implementation of ICCPR also recommended that Article 9(4) ICCPR that entitles persons deprived of liberty to a review of the lawfulness of detention before a court should also be applicable to foreigners or “mainlanders” detained under immigration law. In 2014, the Habeas Corpus act was amended to also apply to foreigners so that “a person arrested or detained by an organ other than court, may petition for habeas corpus, no matter criminal activities are involved or not; an arrestee's or a detainee's request should be reviewed by a specialized court.” According to official sources, from July 2014 to October 2015, there were 36 final decisions under administrative habeas corpus cases concluded by district courses (13 under the Immigration Act and 23 under the Act Governing Relations between the People of the Taiwan Area and the Mainland Area).[18]
Under Article 3 of the Regulations Governing the Detention of Aliens, detained foreigners are informed in writing of the reasons, legal basis, rights and obligations related to their detention.[19] Such information is available in 17 languages.[20] Likewise consular assistance is available including for nationals of countries such as Indonesia, Vietnam and Thailand. Medical services are reportedly provided through arrangements with the Immigration Agency and civil society and religious organisation.
Re-entry bans. According to official figures, 17,542 persons were prohibited entry due to previous record of overstay and illegal work in 2014 and 15,112 for the first ten months of 2015.[21]
Criminalisation. Article 74 of the Immigration Act provides that “A person who enters and/or exits the State without permission or breaks an exit ban shall be punished with imprisonment for not more than three (3) years, detention, and/or a fine of not more than NT$ 90,000.”
International law. Although the region cannot be a party to the UN Refugee Convention, there have been ongoing discussions concerning a Draft Refugee Act since 2006. Dissenters exiled from mainland China as well as stateless persons from other parts of mainland China who entered before the end of 2008 can obtain residence permits but are not recognized as refugees and do not enjoy some of the rights provided in the Refugee Convention.[22] The draft refugee Act establishing for the first time an asylum application process passed initial review at the Legislative Yuan (Parliament) on 14 July 2016. [23] At the time of writing no information is available as to whether immigration detainees can apply for asylum in detention or whether asylum seekers are protected from immigration detention.
As the UN does not recognize the region as a sovereign state, UN agencies like UNHCR and a number of other international organisations (including the World Bank and the International Organisation for Migration) do not collect statistics or socio-economic data on the country, which has effectively left the country in a statistical black hole internationally.[24]
Alternatives to detention. In a 2016 Working Paper for the Global Detention Project, the director of the International Detention Coalition described advocacy efforts aimed at getting the country to adopt “alternatives to detention.” He wrote that the adoption of legal reforms in 2015 illustrates how local advocates can use the promotion of ATDs to effectively engage governments on reform ideas. A civil society advocate said that without ATDs advocates may have “continued to use legislative adversarial strategies and not sought to engage the government.”[25]
DETENTION INFRASTRUCTURE
As of 2016, the Immigration Agency had a dedicated website listing country’s immigration detention centres.[26] At the time of this publication, the website listed seven facilities, including their addresses and contact information:
Two of these facilities, Kinmen and Lienchiang, are on two small islands located closer to the People’s Republic of China. According to government sources, the Immigration Agency uses different facilities depending on the expected time before expulsion. Persons expelled within “relatively short time are placed into temporary detention centers of the Specialized Operational Brigades of the National Immigration Agency, whereas those who cannot leave within a short time-horizon are placed at large-capacity detention centers of the Agency.”[27]
[1] Sigrid Winkler, “To Be or Not To Be,” Brookings, 20 June 2012, https://www.brookings.edu/opinions/taiwans-un-dilemma-to-be-or-not-to-be/
[2] Implementation of the International Covenant on Civil and Politica Rights – Second Report Submitted under Article 40 of the Covenant, Republic of China, April 2016.
[3] Republic of China, “Implementation of the International Covenant on Civil and Political Rights, Initial report submitted under article 40 of the Covenant, “ September 2012. http://www.humanrights.moj.gov.tw/public/Attachment/541517201510.pdf
[4] Association for Human Rights. Global Detention Project Questionnaire. 31 December 2013.
[5] International Detention Coalition, “Children and Pregnant Women No Longer Detained,” 9 February 2015, http://idcoalition.org/news/new-limits-detention-taiwan/.
[6] General Assembly Resolution 2758 (XXVI), Restoration of the Lawful Rights of the People’s Republic of China in the United Nations,1976th plenary meeting, 25 October 1971. http://www.un.org/documents/ga/res/26/ares26.htm
[7] General Assembly, Request for the inclusion of a supplementary item in the agenda of the sixty-third session. Need to examine the fundamental rights of the 23 million people of the Republic of China to participate meaningfully in the activities of the United Nations specialized agencies Sixty-third session, A/63/194, 22nd August 2008. http://www.taiwanembassy.org/public/Data/891723384371.pdf
[8] Schabas, William A. “Taiwan, China, and the International Covenant on Civil and Political Rights,“ PhD studies in human rights. 15 March 2010. http://humanrightsdoctorate.blogspot.ch/2010/03/taiwan-and-international-covenant-on.html
[9] Peter Huang, “A Breakthrough in human rights, “Taipei Times, 8 April 2009. http://www.taipeitimes.com/News/editorials/print/2009/04/08/2003440494
[10] Implementation of the International Covenant on Civil and Politica Rights – Second Report Submitted under Article 40 of the Covenant, Republic of China April 2016; Republic of China, “Implementation of the International Covenant on Civil and Political Rights, Initial report submitted under article 40 of the Covenant, “ September 2012. http://www.humanrights.moj.gov.tw/public/Attachment/541517201510.pdf
[11] Immigration Act, as amended. http://www.immigration.gov.tw/ct.asp?xItem=1096847&ctNode=30026&mp=2.
[12] Implementation of the International Covenant on Civil and Politica Rights – Second Report Submitted under Article 40 of the Covenant, Republic of China, April 2016.
[13] Review of the Initial Reports of the Government on the Implementation of the International Human Rights Covenants, Concluding Observations and Recommendations Adopted by the International Group of Experts, Taipei, 1 March 2013. http://bim.lbg.ac.at/en/news/taiwan-s-human-rights-compliance-under-international-review
[14] Concluding Observations and Recommendations Adopted by the International Group of Independent Experts, March 2013, http://chrgj.org/documents/concluding-observations-and-recommendations-adopted-by-the-international-group-of-independent-experts-taipei-1-march-2013/
[15] International Detention Coalition. “Children & Pregnant Women No Longer Detained.” January 2015. http://idcoalition.org/news/new-limits-detention-taiwan/
[16] Immigration Act, amended Articles 15, 36-38 and 91 as well as Articles 38-1～38-9 stipulated in the Presidential Decree hua-zong-yi-yi-zi No. 10400013351, promulgated on February 4, 2015 Ministry of the Interior of ROC, http://glrs.moi.gov.tw/EngLawContent.aspx?id=332.
[17] Implementation of the International Covenant on Civil and Politica Rights – Second Report Submitted under Article 40 of the Covenant, Republic of China (Taiwan), April 2016.
[18] Implementation of the International Covenant on Civil and Politica Rights – Second Report Submitted under Article 40 of the Covenant, Republic of China (Taiwan), April 2016.
[19] Regulations Governing Temporary Detention of Passengers, 14 January 2013, http://www.immigration.gov.tw/ct.asp?xItem=1182927&ctNode=30026&mp=2.
[20] Implementation of the International Covenant on Civil and Politica Rights – Second Report Submitted under Article 40 of the Covenant, Republic of China, April 2016.
[21] Implementation of the International Covenant on Civil and Politica Rights – Second Report Submitted under Article 40 of the Covenant, Republic of China (Taiwan), April 2016.
[22] Asia Pacific Refugee Rights Network. APRRN WIKI. http://aprrn.info/wiki/tiki-index.php?page=Taiwan
[23] Abraham Gerber, « Draft refugee act passes initial committee review,” Taipei Times, 15 July 2016, http://www.taipeitimes.com/News/taiwan/archives/2016/07/15/2003651069.
[24] The World Bank. “Where are your data?” https://datahelpdesk.worldbank.org/knowledgebase/articles/114933-where-are-your-data-on-taiwan
[25] Grant Mitchell, “Engaging Governments on Alternatives to Immigration Detention,” Global Detention Project Working Paper No. 14, July 2016, https://www.globaldetentionproject.org/engaging-governments-alternatives-immigration-detention.
[26] National Immigration Agency, "Detention Centers," http://www.immigration.gov.tw/lp.asp?ctNode=32917&CtUnit=16673&BaseDSD=108&mp=2 (accessed 17 October 2016)
[27] Implementation of the International Covenant on Civil and Politica Rights – Second Report Submitted under Article 40 of the Covenant, Republic of China, April 2016.
DETENTION STATISTICS
Reported Detainee Population (Day)
DETAINEE DATA
DETENTION CAPACITY
ALTERNATIVES TO DETENTION
ADDITIONAL ENFORCEMENT DATA
PRISON DATA
POPULATION DATA
SOCIO-ECONOMIC DATA & POLLS
LEGAL & REGULATORY FRAMEWORK
Additional Legislation
Act Governing Relations between the People of the Taiwan Area and the Mainland Area. Promulgated by Presidential Order on July 31, 1992. As amended on 3 March 2012.
(1992)
2012
Regulations, Standards, Guidelines
Regulations Governing the Detention of the People of the Mainland China Area and the Residents of Hong Kong and Macao promulgated by Ministry of the Interior Order No. (89) Tai-Nei-Ching 8981131 on February 16, 2000. As amended on 13 November 2017.
(2000)
Regulations Governing the Detention of the Aliens. Enacted and promulgated by Order (89) Tai-Nei-Yi-Tzu No.8981106 of the Ministry of the Interior on Feb.1, 2000. As amended on 27 July 2012.
(2000)
GROUNDS FOR DETENTION
Children & Other Vulnerable Groups
LENGTH OF DETENTION
Average Length of Immigration Detention
DETENTION INSTITUTIONS
Custodial Authorities
PROCEDURAL STANDARDS & SAFEGUARDS
Procedural Standards
COSTS & OUTSOURCING
Annual Budgets for Specific Detention Operations
COVID-19 DATA
TRANSPARENCY
MONITORING
Types of Authorised Detention Monitoring Institutions
Hsinchu Catholic Diocese Migrants and Immigrants Service Centre
(Non-Governmental Organizations (NGO))
NATIONAL HUMAN RIGHTS MONITORING BODIES
NATIONAL PREVENTIVE MECHANISMS (OPTIONAL PROTOCOL TO UN CONVENTION AGAINST TORTURE)
NON-GOVERNMENTAL ORGANISATIONS (NGOs)
NGO Immigration Detention Monitoring Reports
Brief report of foreigner detention centers in Taiwan
(2013)
GOVERNMENTAL MONITORING BODIES
INTERNATIONAL DETENTION MONITORING
INTERNATIONAL TREATIES & TREATY BODIES
Ratio of relevant international treaties ratified
Ratio: 0/19
> UN Special Procedures
> UN Universal Periodic Review
> Global Compact for Migration (GCM)
> Global Compact on Refugees (GCR)
REGIONAL HUMAN RIGHTS MECHANISMS
HEALTH CARE PROVISION
HEALTH IMPACTS
COVID-19
Country Updates
In response to an information request jointly submitted by the Global Detention Project and Amnesty International Taiwan, the Ministry of the Interior reported that to date they have not begun systematically testing new immigration detainees for Covid-19. However, the agency also reported, “Before people are detained, they must be asked about their health condition, undergo a temperature check, and document their medical history. After they enter the detention centre, they are regularly given surgical masks. They are also requiring detention centre staff and cleaning staff to wear masks, increase hygiene awareness, undertake disinfection efforts, and introduce regular temperature checks. New detainees are put in quarantine for 17 days in an observation and quarantine area within the detention centre, after which if they have no symptoms, they are asked to return to the regular detention centre areas. Those who show symptoms are immediately given medical attention by detention centre staff.”
Asked whether they have halted deportation or removal flights, the National Immigration Agency said: “Various countries have introduced restrictions on entry. As such, there are people who are not yet able to be deported. The government is actively coordinating between the Ministry of Foreign Affairs and the relevant consular authorities to arrange for charter flights to deport people.”
The government has taken extraordinary measures to contain and combat the COVID-19 pandemic, having started testing people for the virus in January when the first case was reported. As of 7 April, there were 376 cases and five deaths (as the UN does not recognize it as a sovereign state, the WHO does not publish specific data on it).
However, these measures do not seem to have been extended to immigration detention. According to New Bloom journalist Brian Hioe, “special measures taken to safeguard the health of immigration detainees or other detainees in response to the COVID-19 crisis seem to be lacking.” Since the number of cases in Taiwan remains limited, the government has not undertaken mass testing; accordingly, there appears to be no systematic testing in immigration detention centres.
According to official statistics, there are an estimated 50,000 undocumented migrant workers, of whom approximately 290 are in immigration detention. On 27 February, it was reported that the 32nd person to contract the virus was an undocumented migrant care worker from Indonesia. Subsequently, the deputy director-general of the Ministry of Labour's Workforce Development Agency said that the government would begin checking the employment or residency status of migrant workers who accompany their employers to seek care at hospitals, including whether workers had overstayed their visas or held invalid residency permits. The Ministry of Labour also issued a press release stating that it would work with the National Policy Agency, the Military Police Command, the Coast Guard and similar institutions to increase the government’s capacity to investigate and conduct arrests of undocumented migrant workers. It added that it would continue to offer a reward to members of the public who report on suspected violations of the Employment Service Act by undocumented migrant workers. The government’s stated objective in issuing this press release was to close the “loophole” of virus prevention posed by the situation of undocumented workers. Civil society groups quickly moved to criticise the government’s policies for deterring undocumented migrant workers from seeking medical attention and pushing an already-marginalized group further into the shadows during a global health crisis.
On 1 March, in response to public backlash, the Ministry of Labour indicated that it would not investigate the immigration status of migrant workers seeking medical care. The Minister of Health and Welfare and head of the Central Epidemic Command Centre Chen Shih-chung and Minister Without Portfolio Lin Wan-i reiterated this policy on 2 March. According to a report by Taipei Times, Chen said: “I disagree with the need to strengthen reporting of undocumented workers at present. For hospitals, it does not matter if one is a documented or undocumented migrant worker or a family member of a patient. What matters to us is whether they have any questionable travel history, or illnesses, and if they know how to look after the patient.” Chen also highlighted that any crackdown on undocumented migrant care workers may create an “acute shortage” of care workers available to look after patients. Nonetheless, according to CNA English News, “if a member of the general public makes a report on an undocumented migrant worker, the MOL will still dispatch the local government to investigate, although deportation will be up to the NIA.”
On the topic of wider protections for migrant workers, the deputy director of the Ministry of Labour Cross-Border Workforce Management Division, said: “[T]he abolition of fines, re-entry bans and restoration of documented status needs revision of the current laws, which require consensus in society.” A dozen civil society groups have initiated a petition to call on the government to institute an amnesty on deportations for undocumented workers in order to ensure effective access to healthcare for all, and to stop the spread of the virus.
On 21 March, the Ministry of Foreign Affairs issued a press release stating that there will be an automatic 30-day visa extension for non-citizens who arrived on or before March 21 with a visa waiver, visitor visa, or landing visa. This policy specifically excludes foreign nationals who have overstayed their visas. On 20 March, the National Immigration Agency announced the expansion of an existing voluntary departure scheme for undocumented migrants: “To overstayers who turn themselves in during the designated period of this program [1 April to 30 June], penalty relieves including no detention, no entry ban and a minimum fine of NTD 2,000 (USD66.52).” The Director of the NIA said: “The purpose of this program is to encourage overstayers to turn themselves in so the Agency can help them return home safely.” The NIA also said: “[O]nce the pandemic of COVID-19 eases, the Agency will strengthen enforcement and launch nation-wide sweeps against overstaying population.”
Officials implemented a ban on entry by foreign nationals on March 19. Exempted categories include those holding alien resident certificates; diplomatic identification cards; special business permits; or other special permits.
Taiwan’s National Immigration Agency (NIA) announced the start of a three-month amnesty programme from 1 April until 30 June 2020. This programme is for foreign nationals who have overstayed their visas, allowing them to pay smaller fines and avoid detention should they report to immigration authorities during the grace period. The maximum penalty will be 2,000 NT$ (approximately 66 USD) and no re-entry ban, compared with detention, a maximum fine of 10,000 NT$, and an entry ban of one to eight years for those who do not voluntarily report to immigration authorities. The NIA’s Deputy Director-General urged all persons to use the programme, warning that heavier penalties will be imposed following the “grace period” and that a nationwide crackdown would be initiated once the pandemic subsides. (NB: Taiwanese authorities introduced a similar amnesty programme between January 1 and July 31 2019, warning of similar crackdowns in its aftermath.)
In Taiwan, prisoners are volunteering to make masks. They are paid a small salary and produce around 1000 masks per day.
Government Agencies
Ministry of the Interior: http://www.moi.gov.tw/outline/en-00.html
Immigration Agency: http://www.immigration.gov.tw/mp.asp?mp=2
Police Agency: https://www.npa.gov.tw/NPAGip/wSite/mp?mp=4
Human Rights: http://www.humanrights.moj.gov.tw/mp205.html
International Organisations
Media
Taipei Times: http://www.taipeitimes.com/News
NGOs and Research Institutions
Association for Human Rights: http://www.tahr.org.tw
