ARC requirement for permanent residency unfounded?


#1

Does anybody else think that the ARC requirement in Article 40 of the 入出國及移民法施行細則 may be a case of administrative overreach? Article 23 of the 入出國及移民法 says that to apply for permanent residence, you must “合法連續居留七年.” But what does 居留 mean? Article 3 of the same Law defines 居留 as “指在臺灣地區居住期間超過六個月。” Note that the definition says nothing about holding an ARC. Moreover, the definition of 停留 in the same Article states that 停留 is “臺灣地區居住期間未逾六個月。” So for both 停留 and 居留, the criteria is living 居住 in Taiwan for more than or less than a certain number of days. If for example you held an ARC but lived in Taiwan for less than 180 days, you would meet the criteria for 停留 but not that for 居留.

However, Article 40 of the 入出國及移民法施行細則 narrows the definition of 居留 considerably by defining 合法連續居留 as 持用外僑居留證之居住期間. The effect of this definition is to exclude a foreigner who first held a Visitor Visa for say two years and then an ARC for five years (assuming that all this time is consecutive). Does the Ministry of the Interior have the right to narrow the scope of the Law by redefining terms that have already been clearly defined in the Law? According to Article 158 of the 行政程序法, a regulation does not have force if it contradicts the Constitution or law or if it restricts or abrogates the people


#2

Your analysis is very good, and I applaud you for making it. I will give some more background information on these provisions, so that you can see how this all came about.

When we were lobbying for changes for the Immigration Law in late 1998 and early 1999, every affected person I talked to agreed that the definitions of “residency” and “stay” in Article 3 were rather poor. We offered proposed changes to the Legislators, in particular we came up with a very detailed proposal that would have brought the definition of “residency” in the Immigration Law into syncronization with the use of the word “residency” in the Foreign Passport regulations and the Income Tax regulations, but the Legislators simply said it was too complicated.

The complication arises because (#1) you have to consider in what period the “six months” or “183 days” is calculated. The only reasonable stipulation is to say “January 1st to December 31st”, i.e. the fiscal year. This then brings us to another complication, namely (#2) it must be stated that “residency” status attained one year can be carried over into the first half of the following year. In fact this is what Article 7 of the Income Tax Law, and subsidiary interpretations, clarifies very well.

According to the definition of “residency” in the Immigration Law as it stands now, a foreigner who has been in Taiwan over six months in a fiscal year (in the simplest analysis) should qualify for residency status. If that is true, he/she should be able to obtain a resident visa. However, the Foreign Passport Law uses a different definition of residency.

Hence, it is very complicated. (Most local lawyers are totally unfamiliar with these complications.) Also, you will note in Article 23 of the Immigration Law that foreign spouses only need to be living in Taiwan for 183 days per year of the five years in question. The term used is not “residency”. In the implementing regulations, it is clarified that “living” includes any physical presence with any legal visa. However, at the present time when a foreign spouse goes to apply for permanent residency, the local Police Dept. always wants to see his/her ARC, and will typically refuse to accept the application if the applicant has not met the terms of “residency” (i.e. with an ARC) for the necessary period in question. To borrow your phraseology, this is a textbook case of “restricting rights and freedom with restrictions that do not exist in the law.”

The only solution I see is to offer challenges through the administrative courts.


#3

Thanks for the background Richard. Basically I’m wondering if there are grounds for a challenge in the adminstrative courts. I don’t qualify under the seven-year rule though, so I can’t be a test case. Anyone else out there?

I am a bit surprised to hear that in practice spouses applying for permanent residence have to have held an ARC for five years. Article 40 of the Enforcement rules is very clear: “所稱合法連續居住,包括合法停留及居留之時間,&#2 1512;併計算”. (“legally living for consecutive [years] includes lawful stays and residence. These shall be calculated together.”) In fact, the care that Ministry took in parsing this was what made me pay special attention to the ARC requirement in the preceding sentence.

I suspect that the Ministry would argue that 合法居留 is a term and that it is not defined in the Law, so they are “clarifying” the term in the Enforcement Rules.


#4

I called over to the Taipei Police Station to get their interpretation. They tried to claim that 合法連續居留 is a “term” requiring special definition. In other words, the 居留 in 合法連續居留 is not the same as the 居留 defined in Article 3 (!).


#5

You are speaking of “continuous residency”. According to the law, if you need 183 days per year for seven years in a row (for example), then that means:

Suppose you consider the year 1995. If you have 183 days (or more) of physical presence inside the ROC area with an ARC, then that year counts.

Then let’s look at 1996. If you have 183 days (or more) of physical presence inside the ROC area with an ARC, then that year counts, and you have calculated two years continuous.

Then let’s look at 1997. Etc. Etc.

If you can meet these physical presence requirements for 1995, 1996, 1997, 1998, 1999, 2000, and 2001, then you have seven years continuous residence.

This, I maintain, is the only possible interpretation which complies with the letter of the law, specifically: Article 23 of the Immigration Law.


#6

Oh, so according to your interpretation, if I were present in Taiwan (legally) for more than 183 days in 1996 but I did not have an ARC, then 1996 would not count toward my seven consecutive years of residence?


#7

FOREIGN SPOUSE: If you are married to an ROC national, the requirement is “living”, hence the answer is yes.

ORDINARY FOREIGNER: If you are a single foreigner or married to another foreigner, the requirement is “residency”, hence the answer is no.


#8

Thanks for the clarification of your view. The position I am arguing is any foreigner who has lived in Taiwan for more than 183 days is a resident regardless of whether she has an ARC or not. The ARC requirement is an arbitrary limitation introduced by the Ministry of the Interior. So the interpretation I am advancing differs from your position.

The more interesting question is to what extent adminstrative agencies are allowed to make the law by redefining key terms in the implementation regulations.

Also are definitions in other laws relevant to the interpretation of definitions in this law? That is, does the definition of residency in the Foreign Passport law have any bearing on the definition of residency in the Immigration Law?


#9

Could someone perhaps clarify for an ignorant foreigner what other reuirements need to be met to qualify for APRC?
I have the seven years, 183 days covered, but is there a more onerous one I haven’t met(that I don’t know about)?

Thanks
EJ