From Human Rights to Legal Practice: A Comprehensive Guide to Taiwan’s Immigration Detention System
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Introduction
With the accelerating pace of globalization, Taiwan has evolved into an increasingly international society, making it common for foreign nationals to reside, work, and live within its borders. However, when a foreign national faces a mandatory deportation order from the National Immigration Agency (NIA) of the Ministry of the Interior—whether due to overstaying, unauthorized entry, or violating relevant laws—they often encounter a restriction of personal liberty prior to repatriation. In legal terms, this is known as the “detention” system. In the past, Taiwan’s immigration detention system lacked a clear time limit, leading to situations where some foreign nationals faced prolonged or even indefinite detention. This predicament sparked widespread concern and criticism from domestic and international human rights organizations.
To resolve this controversy, the Justices of the Constitutional Court issued Interpretation No. 708 in 2013, explicitly stating that restrictions on the personal liberty of foreign nationals must comply with due process of law, and the individuals concerned must be given the opportunity to seek judicial remedies. In response to constitutional requirements and international human rights standards, Taiwan’s Immigration Act has undergone multiple amendments. Notably, recent major reforms have officially established a maximum limit on detention days and gradually transferred the review authority to the judicial branch. For individuals and their families who may face this procedure, gaining a deep understanding of this complex system is the crucial first step in safeguarding their rights. Chien Sheng Law Firm possesses extensive practical experience in handling foreign national detention cases, administrative remedies, and immigration law matters. This article will provide a comprehensive analysis of the core concepts, procedural stages, and avenues for legal relief within Taiwan’s immigration detention system.
What is “Detention”? Its Meaning and Legal Nature
Before delving into the details of the detention system, it is essential to clarify the precise definition and legal nature of “detention.” According to Taiwan’s regulations, detention is an administrative coercive measure imposed by the state to ensure the smooth execution of a mandatory deportation order against a specific foreign national. During a reasonable period prior to repatriation, the individual is confined to a specific location (such as a detention center established by the NIA) to prevent them from fleeing or hiding. Simply put, the fundamental purpose of detention is to “secure the execution of the repatriation process,” rather than to punish the individual for past behavior.
Although detention differs in name from “custody” or “imprisonment” in criminal cases, its legal nature remains a coercive measure that deprives a person of their physical liberty. According to Article 8 of the Constitution of the Republic of China, personal physical liberty shall be guaranteed to the people. Except for the arrest of a person in flagrante delicto, which shall be otherwise prescribed by law, no person shall be arrested or detained except through due process of law by judicial or police organs. Constitutional Court Interpretation No. 708 also emphasizes that even foreign nationals facing deportation are entitled to constitutional protection of their personal liberty. When the state implements a detention measure, it must follow necessary judicial procedures or due process of law. This aligns with the international human rights standards outlined in the International Covenant on Civil and Political Rights regarding freedom from arbitrary arrest or detention.
So, under what circumstances will a foreign national be detained? According to Article 38 of the current Immigration Act, foreign nationals subject to a mandatory deportation order are not automatically detained. The NIA may only order temporary detention if it determines that “deportation is obviously difficult to execute without detention,” and the individual meets one of the following statutory conditions: First, the individual lacks relevant travel documents, making it impossible to execute repatriation according to regulations; second, there are concrete facts sufficient to justify the apprehension that the individual may flee; and third, the individual is wanted by a foreign government. These strict prerequisite conditions reflect the legislative spirit of treating detention as a “measure of last resort.”
How Long Can One Be Detained?
Stages, Time Limits, and Reviewing Authorities
To implement the principles of “periodic review” and “time limits” established in Constitutional Court Interpretation No. 708, Taiwan’s current Immigration Act divides the detention procedure for foreign nationals into several rigorous stages. The core design of this system is to transfer the authority to decide on detention beyond a certain period from the administrative agency (the National Immigration Agency) to a neutral judicial organ (the Administrative Court). This ensures that the deprivation of personal liberty is subject to strict supervision. Currently, the maximum total detention period under normal circumstances is 100 days.
The following is a detailed explanation of the four main stages of the detention procedure:
▪️The first stage is “Temporary Detention,”
which marks the beginning of the detention process.When the NIA determines that a foreign national meets the statutory requirements for detention, it may temporarily detain the individual through an administrative disposition. The deciding authority at this stage is the National Immigration Agency, and the detention period begins from the moment of temporary detention, not exceeding a maximum of 15 days. During this phase, the NIA must swiftly assess the individual’s situation and actively process repatriation-related matters.
▪️The second stage is “Continued Detention.”
If, before the expiration of the 15-day temporary detention period, the NIA believes there is still a necessity for continued detention, the law does not permit the administrative agency to unilaterally extend it. The NIA must, at least five days before the period expires, submit a petition with sufficient reasons to the Administrative Court in the jurisdiction where the detainee is located, requesting a ruling for “continued detention.” The court will hold a hearing, listen to the statements of both parties, and make a ruling. The reviewing authority at this stage shifts to the Administrative Court. If approved by the court, the period for continued detention shall not exceed a maximum of 45 days.
▪️The third stage is “Extended Detention.”
Before the expiration of the continued detention period, if the NIA is still unable to smoothly execute the mandatory deportation due to the loss or invalidation of the detainee’s passport or travel documents (which have not yet been renewed, replaced, or extended), or due to force majeure events such as natural disasters or pandemics, and the NIA believes there is a necessity for further detention, it may once again petition the Administrative Court for a ruling on “extended detention.” Similarly, the deciding authority at this stage is the Administrative Court. If approved, the period for extended detention shall not exceed a maximum of 40 days. At this point, the maximum total detention period under standard procedures reaches 100 days (15 days + 45 days + 40 days).
▪️The fourth stage is “Further Extended Detention,”
a system specially added in recent legal amendments, applicable only to a very small number of exceptional circumstances. If, before the expiration of the extended detention period, the detainee still cannot be repatriated due to force majeure events such as natural disasters or pandemics, and the individual meets specific statutory conditions—such as “unauthorized entry” or “having been convicted by a final judgment of offenses under the National Security Act or the Anti-Infiltration Act”—the NIA may, after consulting with the Coast Guard Administration of the Ocean Affairs Council, the National Security Bureau, and other relevant agencies, petition the Administrative Court for a ruling on “further extended detention.” The reviewing authority remains the Administrative Court, and each period of further extended detention shall not exceed 40 days. The review standards for this provision are extremely strict, aiming to balance national security and social order in extreme situations.
To provide readers with a clearer understanding of the differences between each stage, we have summarized the key points of each stage below:
▪️First is the “Temporary Detention” stage, based on Article 38 of the Immigration Act.
This is the starting point of the detention procedure, decided ex officio by the administrative agency (the National Immigration Agency), with a maximum statutory period of 15 days.
▪️Second is the “Continued Detention” stage.
According to Article 38-4 of the Immigration Act, the reviewing and deciding authority at this stage shifts to a judicial organ (the Administrative Court). It requires the NIA to petition the court and must be approved by a judge’s ruling before execution, with a maximum statutory period of 45 days.
▪️The third stage is “Extended Detention,” also based on Article 38-4 of the Immigration Act, and reviewed and decided by the Administrative Court.
This is petitioned when repatriation is impossible due to document issues or force majeure, with a maximum statutory period of 40 days.
▪️Finally, the “Further Extended Detention” stage is based on Article 38-4 of the Immigration Act, still reviewed and decided by the Administrative Court.
This stage is limited to force majeure events such as natural disasters or pandemics, and only when specifically.
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