Blog, Criminal

Although we hope it never comes that far, the South Korean Immigration Office has the right to remove or deport any person who has violated the Immigration Act. This means that the Immigration Office can issue a departure order or deportation to people who have been convicted of a crime, or to people who have in any other way violated the Immigration Act. In this article we will provide an overview of what a departure order and deportation are, when they are issued, and how you can appeal them. Appealing a departure order or deportation is complicated, but definitely possible with the help of experienced lawyers. Read on to find out more about the South Korea deportation rules.

The Difference Between a Departure Order And A Deportation

First things first, a departure order and deportation are not the same. A departure order is given when a foreigner voluntarily admits to their crime and agrees to leave the country peacefully. Usually, the subject signs several documents that state that they will leave South Korea voluntarily within a certain amount of time.

A deportation is a more drastic and coercive measure. When issuing a Korean deportation order, the immigration office will immediately take action so that the foreigner will leave the country. This can even mean putting the foreigner in detention until they are put on a plane. If someone who has signed an departure order refuses to leave, they can also be deported.

When Is the Deportation or Departure Order Issued?

Article 46 of the Immigration Act of South Korea clearly states in which instances a foreigner is subject to a departure order or deportation. Let’s have a closer look at this article. You can read the full text with the South Korea deportation rules here.

Article 46 (Persons subject to Deportation)  

(1) The Commissioner of a Regional Immigration Service may deport any of the following foreigners from the Republic of Korea according to procedures prescribed in this Chapter: 

1. 1. A person who violates Article 7;
   2. A foreigner who violates Article 7-2, or a foreigner who enters the Republic of Korea by such conduct as a false invitation stipulated in the same Article;
   3. A person who is found to fall under or is subject to grounds for prohibition of entry falling under the subparagraphs of Article 11 (1) after entry;
   4. A person who violates Article 12 (1) or (2), or 12-3;
   5. A person who violates any terms or conditions of permission imposed by the Commissioner of the Regional Immigration Service under Article 13 (2);
   6. A person who lands without obtaining permission under Article 14 (1), 14-2 (1), 15 (1), 16 (1) or 16-2 (1);
   7. A person who violates any terms or conditions of permission imposed by the Commissioner of the Regional Immigration Service or an immigration control official under Article 14 (3) (including where it is applied mutatis mutandis pursuant to Article 14-2 (3)), 15 (2), 16 (2) or 16-2 (2);
   8. A person who violates Article 17 (1) or (2), 18, 20, 23, 24 or 25;
   9. A person who changes or adds a work place without obtaining permission, in violation of the main sentence of Article 21 (1), or a person who employs a foreigner or arranges the employment of a foreigner, in violation of paragraph (2) of the same Article;
   10. A person who violates a restriction on residence or the scope of activity, or other matters to be observed prescribed by the Minister of Justice under Article 22;
   11. A person who attempts to depart from the Republic of Korea, in violation of Article 28 (1) and (2);
   12. A person who violates the duty of foreigner registration under Article 31;
   13. A person who is released after receiving a sentence of imprisonment without labor or heavier punishment;
   14. Any other person comparable to those under subparagraphs 1 through 13 who is prescribed by Ordinance of the Ministry of Justice.

(2) Notwithstanding paragraph (1), a foreigner holding permanent residency status in the Republic of Korea among statuses of sojourn provided for under Article 10 (1) may not be deported from the Republic of Korea: Provided, That this shall not apply to any of the following persons:

1. 1. A person who has committed insurrection stipulated under Chapter I of Part II of the Criminal Act or foreign aggression stipulated under Chapter II of the same Act;
   2. A person prescribed by Ordinance of the Ministry of Justice, who is released after having been sentenced to imprisonment with or without labor for not less than five years;
   3. A person who has committed a violation under Article 12-3 (1) or (2), or has abetted or aided another person in such violation.

[This Article Wholly Amended by Act No. 10282, May 14, 2010]

Let’s have a closer look at what this means. We will give a simplified look at what can be grounds for departure or deportation, so for more detailed information, please refer back to the original Immigration Act itself.

Clauses 1 through 5 stipulate that you can be subject to a departure order or deportation if you have falsely or incorrectly entered South Korea. For example, if the passport provided upon entry was a false passport, if the invitation letter provided was falsified, or if there are any other reasons your entry should have been prohibited (you are carrying prohibited weapons, you have an infectious disease, you are a dangerous criminal, etc.) but somehow you are here in Korea.

Clauses 6 and 7 applies to ships, their passengers, and crews. If you are on a ship and wants to land on South Korean soil, you should meet several requirements and obtain permission by Immigration Office. If you enter South Korea through a ship without permission, you can be subject to deportation or a departure order.

Clause 8 states that you can be subject to a deportation or departure order if you do not comply with your visa’s specific regulations, regarding the duration of the sojourn and activities during this sojourn. Simply said, this means that you cannot overstay your visa and can only do those activities that your visa permits. For example, if you are on a D-2 student visa, you are not allowed to work full-time. If you are on an E-7 visa for engineering, you are not allowed to work in a different field. Clause 9 stipulates that you have to obtain permission from the Immigration Office before changing your workplace. 

Finally, clauses 10 through 14 stipulate some other instances in which someone could be deported, such as not filing for alien registration, making a false alien registration number and using it, or fraudulently using another person’s alien registration certificate. Most importantly, you could be subject to deportation or a departure order after having been sentenced for a crime. The departure order or deportation order is usually served after the person has been released from their sentenced imprisonment.

It is important to note that permanent residents of South Korea cannot be deported from the country unless they have committed a serious crime, such as murder, robbery, sexual crimes, illegal drugs, kidnapping or abduction of children, forming an organization or group aimed at committing violence, etc. Even if your crime is minor and you get sentenced to only a fine, being deported is unavoidable as long as your crime fits in these categories. Permanent residents can also be deported or ordered to leave if they have helped other foreigners illegally enter the country.

Although Article 46 of the Immigration Act clearly states the instances in which foreigners can be deported, in reality it is often not so clear. For example, the Immigration Act does not state that foreigners can be deported after having been sentenced to pay a fine, but in reality, the Korean Immigration Office does sometimes issue departure orders when the fine is over 3 million KRW. That is why it is important to always consult a lawyer when you are sentenced, arrested, or sued for any crime, to help prevent potential deportation.

Procedure of Deportation and Departure Order in Korea

The Korean Immigration Office is allowed to review any foreigner’s case and issue departure orders or deportation if they deem it necessary. Usually, the immigration office first has an interview with the foreigner to assess whether the order should be issued.

If a departure order is issued, the immigration officer will ask the subject to sign legal documents, in which the foreign subject acknowledges their wrongdoings and promises to leave Korea within a certain period of time. The foreigner can use that time to quit their job, move out of their house, etc.

If the immigration office decides to deport someone, an officer will deliver the deportation order directly to the foreigner and will immediately take action to ensure that the person will leave the country. The immigration office is allowed to detain people in foreign detention center (외국인보호소) if they believe they are a flight risk. The maximum duration of stay is 10 days, with an additional extension of 10 days possible.

Appealing a Deportation and Departure Order in Korea

Although the immigration office is legally allowed to decide whether or not to deport someone, these decisions are still subject to legal review by the court. This means that anyone who has received a departure order or deportation is allowed to appeal to the court to have their case reviewed. 

Filing an appeal does not automatically mean that your departure order or deportation will no longer be valid, a court still might uphold the order if they think the immigration office made the right decision. Working together with qualified Korean immigration lawyers can help your chances of having your appeal recognized.

There are three kinds of appeals: objection, administrative appeal, and administrative suit.

1. Objection

An objection is simply a written appeal made to the Minister of Justice of Korea through the head of the immigration office within 7 days of receiving the departure or deportation order. The Minister of Justice would decide whether they would sustain the objection or not. Even if the objection is overruled, the Minister of Justice can grant a special permission to stay, if the subject formerly had a Korean nationality, or in other exceptional circumstances that they need to stay in Korea.

2. Administrative Appeal

An administrative appeal is pretty similar to a lawsuit, but there are a few differences: it is filed to Administrative Appeals Commissions (not the court), the Administrative Appeals Commissions should make a decision within 60 days (which is much faster than the lawsuit), and if your appeal is dismissed you can try it again by taking it to the actual court. This is nice if you want simple and quick result compared to lawsuit.

That is why many people try administrative appeal first, and then file the lawsuit when it is dismissed. But you can file the lawsuit directly without administrative appeal.

3. Administrative Suit

Administrative Suit, which is also called “revocation suit,” is a lawsuit filed to the court against the Immigration Office, claiming to revoke the departure order or deportation. This suit 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 suit is filed against the departure order or deportation, the Korean court will mainly look at two things:

1. Whether the order of the Immigration Office complies with the law.
2. Whether the Immigration Office has abused its discretion.

Firstly, the court will review whether the departure order or deportation was valid within the Immigration Act. Secondly, it will also review whether the Korean Immigration Office has abused its discretionary power. This means that the court will determine whether the decision by the immigration office does more harm to the life of an individual than it does good to the Korean public. If that is the case, the deportation order could be revoked.

To establish whether the immigration office has abused its discretionary power, the court will look at whether the plaintiff has their family in Korea, the seriousness of the whatever reason made them be deported, the harm done to the plaintiff if they are deported, and the good this individual has done to Korean society, etc.

Korean courts do not simply look at the text of the Immigration Act, but consider the case as a whole to see whether the Korean Immigration Office has abused its discretionary power. In fact, there have been several cases in which the departure order or deportation was revoked based on this abuse of discretionary power.

Administrative suits are not easy, because it is important to make a good case that shows the overall character of the person subject to deportation. That is why it is highly recommended to immediately employ a legal service that can help you build a strong appeal if you have been issued a departure order or deportation.

Seoul Law Group Case Study

In this case, the client was a male university student with a D-2 visa. He kissed a girl without her permission, which made her press charges against him, and he was found guilty of “indecent act by compulsion” (Criminal Act, Article 298) and fined. Since he committed a sexual crime, the Immigration Office decided that he is “A person deemed highly likely to engage in any conduct harming the interests or public security of the Republic of Korea” and “A person deemed highly likely to engage in any conduct disturbing economic or social order or good morals” stipulated on Immigration Act, Article 11(1)3 and 11(1)4, which in turn stipulated on Article 46(1)3 mentioned above. So he got a departure order.

He turned to SLG, and our lawyers filed an administrative suit seeking revocation of the departure order.

You need to know that it is not easy to win a case for revocation of a departure order. Since the immigration office has wide discretion, the court is usually reluctant to revoke orders issued by the Immigration Office. In the cases where the court revoked the departure order, their reasons were like this:

 – When the Immigration Office violated due process. There was a case in which the immigration office did not state the reason for the order in the departure order, which violates the Administrative Procedure Act. The court declared that the departure order without reason is illegal, and revoked it. (Seoul Administrative Court Decision 2013GuHab30612 Decided July 3, 2014)

 – When the reason is not enough to warrant a departure order. There was a case in which the foreigner committed “Taking custody of Stolen Property by negligence” (Criminal Act, Article 362) and was fined for it, and the immigration office issued the departure order. The court found it too harsh because the crime was committed by negligence, not intentional, which means he didn’t know that it was stolen property. The fact that he was married to a Korean woman was also taken into account.

 – When the departure order is not beneficial for the national interest. There was a case in which the foreigner was tested HIV positive, and the immigration office issued the departure order. The court revoked it because AIDS has a low risk of transmission, the Plaintiff’s families are all in Korea, and “From the perspective of preventing the spread of HIV, what is more dangerous is when the infection is not confirmed rather than the case where the infection is confirmed. If there is a widespread perception that people can be deported just because their HIV infection is confirmed, there is a high possibility that potentially infected people will avoid testing, which will have an adverse effect.” (Seoul Administrative Court Decision 2007GuHab24500 Decided April 16, 2008)

In this case, the Immigration Office didn’t violate the due process, so SLG mainly appealed to the second and third reasons.

 – We pleaded that the reason is not enough to warrant a departure order. It was only one kiss, a very minor assault, and the victim already forgave the plaintiff, saying that she doesn’t want him to be deported.

 – We pleaded that the departure order is not beneficial for the national interest. Our client was a scholarship student invited by the Korean government, after passing an examination that only one person could pass throughout his whole country. He was already doing quite well in his university. It would be beneficial for Korea to grant this excellent student to stay here so that he could continue his study and use his talent.

The court accepted our arguments and revoked the departure order, which was a hard-fought victory for us.