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When will a foreign national be banned from (re)entering Taiwan?

Foreign nationals can be prohibited from entering Taiwan on a number of grounds. This post outlines those grounds and provides an updated translation of the regulations governing entry bans.

Statutory basis

Taiwan’s National Immigration Agency has the power to prohibit a foreign national from entering Taiwan. Immigration Act §18.

New translation (as of October 2014)

The rules for entry bans are set out in the ‘Operation Directions for Banning Entry of Aliens’ (禁止外國人入國作業規定). The Operation Directions have been amended twice in the last year but no updated translation has been available. A new translation is here in a bilingual format. It is provided by the Winkler Partners Translation Department as a public service to the international community in Taiwan and is part of an project to translate important but previously untranslated Taiwanese laws.

Multiple grounds for entry bans

The Operation Directions were most recently amended in 2014. They provide for 18 different circumstances that can lead to prohibitions on entry to Taiwan for periods generally ranging from one to ten years. Some bans can be permanent. Reasons for imposing an entry ban include:

  1. violations of immigration rules such a failing to submit a passport for inspection or using another person’s passport (Operation Directions §2) ,
  2. criminal record in Taiwan (§4),
  3. overstays (§3), and
  4. likelihood of conduct jeopardizing national security, public safety or terrorist activities (§5).

Suspended sentences and suspended indictments grounds for ban

According to the Operation Directions, entry bans based on a criminal record include not only suspended sentences, but also decisions by or to suspend indictment. These bans last for two years. §4(8).

An overstay of up to 90 days is exempt from an entry ban but the overstaying foreign national will not be able to enter Taiwan on a landing visa for one year. §8(1). The exemption will be revoked if the foreign national fails to pay the overstay fine.

Reductions and exemptions to bans

There are also provisions that may mitigate the harshness of these bans.  For example, a ban may not be imposed in substance abuse cases where the foreign national has successfully completed a diversionary treatment program. §3(8). The National Immigration Agency’s Immigration Case Review Committee may also extend or reduce bans by one to three years. §5. Permanent residents, spouses of Taiwanese citizens, stateless persons with residence, and victims of human trafficking are eligible for 50% reductions or humanitarian exemptions. §§8-12.

Appeals

Entry bans are administrative decisions. They can be appealed in a two-step process. First the banned foreign national must appeal to the National Immigration Agency. If the National Immigration Agency denies the appeal, the appeal can be raised to the Ministry of the Interior. These appeals are intended to give the agency making the decision and its superior agency the opportunity to correct any errors. In practice, appeals to administrative agencies are rarely successful. These appeals are usually resolved in a few months.

The second step is an appeal to the courts. If the Ministry of the Interior denies the banned foreign national’s appeals, the foreign national gains standing to take legal action in Taiwan’s Administrative Courts. Despite their name, the courts are part of the judicial branch of government. They are independent of executive branch agencies like the National Immigration Agency and the Ministry of the Interior and overturn administrative decisions with some regularity. Proceedings in these courts are likely to last at least one year. The ban normally remains in place during the proceedings.

Download and license

Download Operation Directions for Banning Entry of Aliens.

Creative Commons License
“Operation Directions for Banning Entry of Aliens” by Winkler Partners is licensed under a Creative Commons Attribution 3.0 Unported License.

Based on a work at http://www.immigration.gov.tw/.

Peter Dernbach in Forbes Asia on indictment of former Ting Hsin chairman Wei Ying-chun

Forbes Asia recently covered the indictment of Ting Hsin International Group’s former Chairman Wei Ying-chun. Wei, a member of one of Taiwan wealthiest families, was indicted on criminal charges related to a 2013 food involving adulterated olive oil allegedly sold through one of Ting Hsin’s subsidiaries. He is also under investigation on criminal charges arising from the ongoing “gutter oil” scandal in Taiwan and is currently being held in custody.

Peter is quoted as saying that Taiwan has a relatively strong record in prosecuting food safety cases in recent years. The trend in these case has been “quick” investigations and “severe” penalties. The difference in this case is that Ting Hsin is a much larger company than those prosecuted in the past. Its multiple layers of management may make it difficult for prosecutors prove that its Chairman knew that the company was selling adulterated olive oil.

You can read the full article here.

Peter and WP’s Gary Kuo have an upcoming article in the November issue of Taiwan Business Topics that analyzes civil and criminal litigation arising from an earlier 2011 case and the 2013 olive oil crisis.

A quarter of top global brands are represented by Winkler Partners

Each year Interbrand releases a list of the 100 Top Global Brands, which gives a clear picture of which brands are doing well and which aren’t. Of the brands that made the list, Winkler Partners represents 25 of them.  Interbrand measures company brand value to compile its list.

Top risers such as Facebook, whose value increased 86% year on year, and Amazon, who rose 25%, show that increasingly, the biggest brands are tied to Internet use. Social media, eCommerce, software and IT solution providers as well as perennial favorites such as hardware manufacturers Apple and Samsung also feature heavily in the list. Four of the top ten are technology firms, with thirteen overall, the largest category on the list except for automotive brands, of which there are fourteen.

Winkler Partners currently represents 25 of these top global brands of 2014, an increase from 18 in 2010. Brands that we have worked with are active in many fields, from fashion to software, beverages to media.

The full list of 100 Top Global Brands can be found here.

2015 Internship

Winkler Partners is looking for an intern for the first half of 2015 (c. January to June).

The basic qualifications include good analytic, research, and writing skills. You will probably be a native speaker of English or someone primarily educated in English. We will try to pair you with a Taiwanese law student or intern lawyer.

Chinese language ability is a plus but not required. This position is well suited to someone in Taiwan or the region who is thinking seriously of attending law school.

Your duties would include curating social media sites, writing updates on legal topics, and light case work for 30-40 hours per week. The pay is NT$200 per hour (c. US$7, the same as what the Taiwanese intern will receive) and you will have to cover your own travel to and living expenses in Taipei (a minimum of US$700 per month on a tight student budget).

We regret that Taiwan’s laws currently preclude us from obtaining work authorization for candidates with Chinese citizenship (including Hong Kong and Macau) unless the candidate is a dual national. Offers to successful candidates will be conditioned our ability to receive work authorization.

Please send a resume, a brief writing sample, and a cover letter explaining your interest in an internship in Taiwan to the attention of Maggie Chu  (mchu@winklerpartners.com).

WP welcomes new associates

Amy Fang, Andrew Mai, and Betty Chen recently joined Winkler Partners as associates.

Amy’s practice focuses on intellectual property and commercial dispute resolution.

Andrew and Betty were intern lawyers at Winkler Partners and recently completed their bar association training.

Amy, Andrew, and Betty are all graduates of National Taiwan University School of Law.

Amy also holds an LLM in international business law from the London School of Economics.

Peter Dernbach in Asia IP on Taiwan’s Intellectual Property Court

Asia IP‘s July issue features an in-depth, comparative look at intellectual property courts around the region entitled “Battle Cry for IP Courts.”  The article quotes Peter Dernbach on the Taiwan IP Court’s broad jurisdiction, its heavy workload, and the role of the IP police in enforcement. Peter leads the Winkler Partners IP practice.

Other leading Taiwanese practitioners noted the high rate of patent invalidation by the IP Court and commented on the selection and training of judges.

Taiwan’s IP court was established in 2008. Its 15 judges hear over 1,600 cases annually.

Asia IP’s helpful survey of the region shows that Taiwan is in the region’s mainstream. Like many of its neighbors, it has a specialized IP Court that is well-regarded by practitioners despite some room for improvement in patent protection.

Taipei mayor candidate visits WP rooftop garden

Taipei mayoral candidate Dr. Ko Wen-je visited our rooftop garden last week to learn about what businesses are doing to reduce their carbon footprint. Winkler Partners managing partner Robin Winkler urged Dr. Ko to support rooftop gardens to create a greener Taipei.

Dr. Ko with managing partner Robin Winkler

Dr. Ko tries fruit grown in our rooftop garden.

Our rooftop garden is open to the public. To arrange a visit, please contact City Shen at +886 (0)2 2311-2345 ext. 346 or cshen@winklerpartners.com

Translation of Taiwan’s Habeas Corpus Act

Taiwan’s Habeas Corpus Act came into effect on 8 July 2014. The Act has important implications for foreign nationals in Taiwan because it requires judicial review of administrative detention by agencies such as the National Immigration Agency .

The Chinese-language United Daily News, for example, reported on 17 July that the Taoyuan District Court ordered the release of a Vietnamese migrant worker who had overstayed and had been held by the NIA in a detention facility since April. After a habeas corpus petition was filed on her behalf, the District Court ruled that her detention was unconstitutional and ordered her release. The Winkler Partners Translation Department has translated the Act as part of an ongoing project to release important but untranslated laws and regulations.

The translation is available for download here.

Creative Commons License

“Habeas Corpus Act” by Winkler Partners is licensed under a Creative Commons Attribution 3.0 Unported License.

Based on a work at law.moj.gov.tw.

Points test for foreign graduates of Taiwanese universities makes work permits easier

In early July, Taiwan’s Ministry of Labor amended its regulations governing work permits for foreign professionals to allow foreign graduates of Taiwanese universities to obtain work permits more easily. Previously, only an employer who was willing to pay the foreign graduate an average monthly salary of NT$37,619 could sponsor a foreign graduate for a work permit.

Under the new rules, the rigid minimum salary requirement has been replaced with a more flexible points system that awards points based on factors including compensation, language ability, and experience living abroad. If the foreign graduate scores 70 points, the employer can sponsor the student for a work permit for professional employment (‘specialized and technical work).

There is a quota of 2,000 work permits in the first year.

Although the new point system is not expected to increase the number of foreign professionals in Taiwan immediately, it is a very significant first step away from the minimum salary requirements that have discouraged Taiwanese employers from hiring foreign professionals.

The application period is 3 July 2014 to 2 July 2015. Application information in Chinese for employers is here.

As a public service, Winkler Partners has translated the eight-factor point system into English. It can be downloaded here.

Chen Hui-ling becomes member of Asian Privacy Scholars Network

Chen Hui-ling recently joined the Asian Privacy Scholars Network. The Asian Privacy Scholars Network aims to further the study of personal data protection, privacy, and surveillance in countries of the Asia-Pacific region, through conferences, publications and networking. It is predominantly comprised of academic scholars, but also includes  government, NGOs and business and practitioners.

Hui-ling publishes regularly on Taiwanese privacy law and recently attended the Asia Cyber Liability Insurance Conference in Singapore.

 

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