[Updated on March 20th, 2020] In South Korea, the immigration office may remove or deport from South Korea any person who violated the Immigration Control Act(“ICA”). Any person who is released after receiving a sentence of fine, imprisonment or heavier punishment could be removed from Korea by an exit or a deportation order pursuant to ICA. In this article, we will provide a general overview of an exit and deportation order under Korean immigration law.
- 1 What Are the Deportation Order and the Exit Order?
- 2 When Is the Deportation or Exit Order Issued?
- 3 How is the Procedure of Deportation and Exit Order in Korea?
- 4 How to Appeal the Deportation and Exit Order in Korea
What Are the Deportation Order and the Exit Order?
A deportation order and exit order is an administrative disposition by the immigration office that expels a foreigner from Korea. The difference between the two is a deportation order is a coercive measure. It can even detain a foreigner. An exit order is a less intrusive measure that is usually rendered to a foreigner who admits the charge and is willing to leave Korea voluntarily. If a foreigner who received an exit order refused to leave Korea in the end, the immigration office issues a deportation order and moves to the enforcement.
When Is the Deportation or Exit Order Issued?
The requirements for the deportation and exit orders are the same. The ICA provides a long list of cases where the foreigner can be removed by the order from the Korean immigration office. The most common subjects are:
- A person released after having been sentenced to imprisonment without labor or heavier punishment
- A person deemed highly likely to engage in any conduct harming the interests or public security of Korea
- A person deemed highly likely to engage in any conduct disturbing economic or social order or good morals
- A person equivalent to those referred to in the above whose entry into Korea is deemed inappropriate by the immigration officer
As you can see, the ICA uses very inclusive terms such as public security, economic or social order and good morals (hereinafter “public order”). Almost 100% of appeal cases litigated at the courts are centered on whether the immigration office’s application of this public order clause is legitimate. There is criticism that this clause is vague and misappropriated by the immigration office. The court, however, sees this type of inclusive term as inevitable to cope with various situations.
Also, it should be noted that, although the ICA mentioned only a foreigner who has been sentenced to imprisonment, this does not mean a foreign sentenced a fine is safe from being deported from Korea. On the contrary, the Korean immigration office is very proactive in issuing an exit order against a foreigner who committed a crime and was sentenced a fine. Please check our previous article on this issue.
How is the Procedure of Deportation and Exit Order in Korea?
Under Korean law, the immigration office is empowered by law to review the case and to decide whether the deportation or exit order is rendered.
The immigration office first has an interview with a foreign subject. When the immigration office reasonably finds a foreigner falling under the requirements for deportation, they decide to choose whether deportation or exit order is issued.
If the immigration office chooses an exit order, they ask the subject to sign off some legal documents whereby the foreigner acknowledges his wrongdoing and promises to leave Korea with a certain period of time.
When the immigration officer decides to deport the subject, an immigration officer shall deliver the deportation order to the foreigner and immediately take action to make the person leave Korea.
If the immigration officer finds a risk of running away, the officer can detain the subject with approval from the head of the immigration office. The duration of detention cannot exceed 10 days, which can be renewed up to 10 more days.
The foreign subject can stop the deportation process by filing an appeal. Also if the individual files a claim for refugee protection, the deportation order cannot be executed until the refugee claim is decided by the Korean authority.
How to Appeal the Deportation and Exit Order in Korea
A deportation order and an exit order from the immigration office is subject to the judicial review of the court. It is true that the immigration office has a broad range of discretion power in deciding whether to remove foreigners from Korea. That power, however, is still under the scrutiny of the law. Therefore, under Korean law, any foreigner who received a deportation or exit order can appeal for the reconsideration of the validity of that order.
There are two possible ways to appeal the decision from the Korean immigration office.
An individual who was given a deportation order may file an administrative appeal. This appeal is made to the Minister of Justice of Korea through the head of the 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 order or 180 days after the order was issued, whichever comes first.
This administrative appeal is a kind of prepositive procedure for the court appeal. Any party who objects to the decision from the agency can bring the case to the administrative court, which is explained below.
The second way of appeal is to ask the judge at the administrative court to reconsider the validity of the immigration office’s decision.
The judicial appeal must be filed within 90 days after the notice of the order or 180 days after the order was issued, whichever comes first.
When the court reviews the validity of the order, it applies the legal theory of misuse of discretionary power. The legal theory of misuse of discretionary power means 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, it should not do more harm to the foreigner’s individual life than benefits to the public.
This means a lot because the Korean courts do not just mechanically interpret the words prescribed in the statute. They consider various fact details surrounding the foreign individual. Even if the order does correspond to the specific clause of the law, it could sometimes result in a harsh outcome and cause irreparable harm to the individual. Korean courts have tried to protect foreigners in that very situation by deploying the rule of misuse of discretionary power.
This has been a strong position held by the Korean courts. And there are many cases where the courts had overturned the immigration office’s deportation and exit orders after finding the immigration office misused their discretionary power.
Examples Of Successful Court Appeals
(1) 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 were, among others, (i) the individual had lived in Korea for many years as an English teacher and (ii) he committed no crime other than those convictions before.
(2) 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 were, among others, (i) the individual had lived in Korea for many years as an English teacher and (ii) he committed no crime other than those convictions before.
(3) The court has ruled that the deportation order against an HIV positive personnel is an abuse of discretionary power considering the person’s strong living base established in Korea long time ago.
(4) A deportation order against a person with a one and half year jail time sentence with a 3-year suspension for the violation of (then-existing) Anticommunist Act was struck down, as the court found it as an abuse of discretionary power. The court found that his solid living base in Korea supported by other character evidence is a legitimate interest that should be protected by allowing his continuous residency in Korea.
(5) There have been many successful appeal cases dealing with DUI or unlicensed driving.
Interestingly enough, the deportation orders issued in those cases did seemingly fall within the justifiable grounds stated in the relevant statute enabling the immigration office to issue the orders. The Korean court, however, does not interpret laws mechanically. They look into the totality of the facts and circumstances and decide whether or not it goes too far.
We hope this article can be of assistance to anyone who wants to know how the deportation order works in Korea. If you have more questions, please email us by clicking here.
© Wonil Chung. All rights reserved.
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.