- 期刊
入出國及移民法增訂外國人「再延長收容」規定之探討
Probing into the Adding of "Re-extended Detention" Regulations for Foreigners to the Immigration Act
摘要
COVID-19疫情期間，特定國家採取邊境封閉措施，禁止國際客運定期航班入境，導致移民署無法正常遣送特定國家受收容人，依現行入出國及民法相關規定，收容期間（暫予收容、續予收容及延長收容合計100日）屆滿，即須對受收容人為收容替代處分，並釋放出所。受收容替代處分者趁機再次失聯之現象頻繁，尤其高風險之受收容替代處分者（包含未經許可入國、涉刑事案件等），衍生社會治安、國家安全及防疫破口隱憂。我國現行入出國及民法並無得再聲請法院裁定「再延長收容」之規定，實不足以因應天然災害、疫情（如本次COVID-19疫情）、交通斷絕、外國政府片面禁止國際航班入境等不能預見，抑或縱加以最嚴密之注意亦不可避免之不可抗力因素，致無法正常執行強制驅逐（遣送）受收容人出國，所衍生之上述嚴重問題。本文參考日本及美國等國收容法制，並重新詮釋非疫情時代之司法院釋字第708號及第710號解釋，且從合憲性及妥適性進行評估，建議入出國及民法增訂「再延長收容」制度，以因應實務需求。
並列摘要
During the COVID-19 pandemic, border closures were implemented in certain countries by banning regular international civil flights from entry. As a result, the National Immigration Agency could not repatriate detainees back to those certain countries as normal. According to current regulations of the Immigration Act, alternative sanctions of detention shall be implemented and detainees shall be released if their detention periods (up to 100 days in total, including temporary detention, continued detention, and extended detention) are expired. The situation allowed those who were subject to detention alternative sanctions grasped the chance and lost contact again frequently. In particular, the high-risk ones who were subject to detention alternative sanctions (including those who entered the country without permission and those who were involved in criminal cases) led to concern over social order, national security, and created flaws in the pandemic prevention. According to Taiwan's current Immigration Act, filing a petition to the court for a decision on "re-extended detention" is not possible. Being unable to file a petition for "re-extended detention" causes the government to fail to cope with unpredictable factors, such as natural disasters, pandemics (For example, the COVID-19 pandemic), the transportation cut-off, and foreign governments' unilateral policies on entry denial of international flights, or force majeure factors under even the closest attention. These unpredictable or force majeure factors make the government unable to forcibly deport (repatriate) detainees back to their countries as normal, which leads to serious problems as stated above. In this essay, regulations related to detention in Japan and the U.S.A. have been considered for making a re-interpretation of the contents in Judicial Yuan Shi Zi No. 708 and No. 710 in a non-pandemic time. Based on constitutionality and appropriateness, the assessment of related regulations has been made to propose the adding of "Re-extended Detention" regulations to the Immigration Act in order to cope with practical needs.