A lawyer recently submitted a letter to a media outlet criticizing a proposed amendment to the Immigration Act (入出國及移民法), which the writer said would regulate how the state can intervene in the marriages and lifestyles of foreigners living in Taiwan.
The lawyer said a clause that would be added to Article 24 would allow the National Immigration Agency (NIA) to revoke foreigners’ residence permits if it has sufficient evidence that they do not live with their dependent relative without justifiable reasons, or that statements they made or evidence found by the agency regarding their marriage are inconsistent.
This view is clearly a misunderstanding of the purpose of the draft amendment. Marriage and lifestyles vary from person to person, especially in transnational partnerships. There is no such thing as a “one-size-fits-all” solution.
The state should have no right to intervene in this, as is the case in all countries that respect the rule of law. However, this does not mean that the government should not have the right to control the entry and residence of foreigners.
The draft amendment would regulate the NIA’s right to check applicants’ statements, such as their “reasons for residence,” and gather evidence on their consistency before granting residence.
Obviously, the proposal seeks to correct the NIA’s inappropriate practice of frequently rejecting applications of foreign spouses of Taiwanese who “do not live with their Taiwanese counterpart to maintain the family life and marriage,” as the NIA considers them as not corresponding to “our national interests.”
The purpose of the draft is not to determine the existence or nonexistence of applicants’ marriage, and the lawyer is wrong when he writes that the amendment seeks “to judge the authenticity of foreigners’ marriage, and completely ignores the freedom of marriage and the way of life of the new residents.”
If there were no such restrictions, any foreigner who has a marriage certificate could enter and reside in Taiwan. This would inevitably be problematic and it would not be in the national interest, nor of people’s individual rights and interests, which is even more inappropriate.
（原載於2023/02/02 “Taipei Times”，Translated by Lin Lee-Kai，https://www.taipeitimes.com/News/editorials/archives/2023/02/02/2003793539）
茲有律師投書認為，《入出國及移民法》修正草案第廿四條增訂「有事實足認其無正當理由而未與依親對象共同居住，或有關婚姻真實性之說詞、證據不符」得為移民署撤銷居留許可的事由，乃國家權力介入外國人的婚姻關係及相處模式之規定。以上見解，顯然誤會該規定意旨。
婚姻生活方式因人而異，尤其是跨國婚姻更為明顯，不能一概而論，且國家權力無由置喙，乃法治國家之當然。但也不容否認，政府有依法管理外國人入境與與居留之權力。
草案規定，移民署以外國人申請「居留原因」與其「說詞、證據」是否相符，為得否居留之標準，顯然係為矯正過去移民署經常以「未與國人配偶共同經營婚姻家庭生活」為由，認定外籍配偶不符合「我國國家利益」，而不准其取得永久居留之不當處分，並非確定當事人的婚姻關係存在與否之規定，實難謂係「評價外國人的婚姻關係是否真實，完全不顧新住民的婚姻自由及生活方式」。否則，任由外國人持一紙婚約即入境居留，難免形成管理漏洞，而有礙國家利益，也有損人民權益之虞，反而更不妥當！
（原載於2023/01/30《自由時報》，https://talk.ltn.com.tw/article/paper/1564330）
