In South Korea, the immigration office may remove or deport from South Korea any person who breached the Immigration Control Act(“ICA”) of South Korea. Any person who is released after receiving a sentence of imprisonment without prison labor or heavier punishment may be deported by the deportation order as well.
When the immigration officer reasonably finds a foreigner falling under the requirements for the deportation and risk of her running away, the officer can detain the person with approval from the head of immigration office. The duration of detention cannot exceed 10 days, which can be renewed up to 10 more days. During this detention, the officer interviews and decides whether to deport the individual or not.
When the immigration officer decides to deport a foreigner, the officer shall deliver the deportation order to the foreigner and immediately take action to make the person leave South Korea. But, when the individual files a claim for refugee protection, the deportation order cannot be executed until the refugee claim is decided by the Korean authority.
Then, can you appeal the deportation order issued by the Korean immigration office? Yes, you can. There are two possible ways to stop the deportation. First, the individual who was given a deportation order may file an administrative appeal. This appeal can be made to the Minister of Justice of South Korea through the head of immigration office. This administrative appeal must be filed within 7 days after the receipt of the deportation order. Alternatively, the party can make an appeal to the Administrative Appeals Tribunal, which in general shall be filed within 90 days after the notice of the deportation order or 180 days after the deportation order was issued, whichever comes first.
The second way is to appeal to the Court and ask the judge to reconsider the validity of immigration office’s deportation decision. It is true that immigration office has the broad discretion power to deport foreigners. But that power is still under the scrutiny of the court. Therefore, under Korean law, any foreigner who is to be removed and deported by the order of the immigration office can appeal to the court for the reconsideration of the validity of that order. What is important here is that the court does not just mechanically interpret the words in the code, but considers various factors to decide whether the decision was reasonable or not. The court has followed this legal standard for a long time and ruled that the decision of the immigration office to deport a foreigner should not only meet the requirements provided by the ICA, but also, even though it does, any unreasonable decision which could do more harm to the foreigner’s personal life than benefits to the public constitutes an abuse of discretion and therefore cannot be sustained.
For example, in a case where an American English teacher was given a deportation order based on his unlicensed driving and DUI convictions, the Court held that the order was an abuse of discretional power and, therefore, void. The grounds for the Court to vacate the deportation order in that case were, among others, (i) the individual had lived in Korea for several years as an English teacher and (ii) he committed no crime other than those convictions before in Korea.
This case is a good example which shows that the validity of deportation by the immigration office is decided not merely by the wording of the laws but by the consideration of various fact details surrounding the foreign individual. Even though the deportation oder does correspond to the specific clause of law, it could sometimes entail a harsh outcome and cause irreparable harm to the individual. The Korean court has tried to protect foreigners in that very situation, as shown in the foregoing case.
We hope this short article could be of assistance to anyone who wants to know how the deportation order works in Korea. If you have more question, please email us by clicking here.
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Because of the generality of this update, the information provided herein may or may not reflect the most current legal development at the time of view, nor is it applicable in all situations nor should be acted upon without specific legal advice based on particular situations.