Blog, Criminal

Deportation laws in South Korea play a major role in the country’s national security and often stir up large debates among policymakers, human rights activists, and the general population. As more foreigners turn their eyes to Korea as a future home, understanding the intricacies of deportation law is incredibly important.  

This article will shed light on what deportation means in the context of South Korea while simultaneously looking into a deportation overruling case study. If you or someone you know is currently undergoing a deportation case in South Korea, it is essential to hire a lawyer you can trust. Read on to learn more about deportation laws and how to seek out a reliable legal team such as Seoul Law Group (SLG). 

What Is Deportation in Korea

Firstly, it is important to define the term ‘deportation (강제퇴거)’ and what it means in the context of Korean law.

Like in most countries, deportation occurs when a country’s government orders the removal of a foreign national or non-citizen from its borders. This typically occurs if the foreigner has broken the law, submitted fraudulent information to the Immigration Office, or poses a threat to national security.

Deportation is oftentimes not immediate and typically involves a legal process that may include hearings in Immigration Office (출입국관리사무소). Therefore, the foreigner typically has the opportunity to present their case either alone or with the help of a lawyer.

According to Korea’s Immigration Act (출입국관리법), the reasons for foreigners to be deported are as follows:

1. A Person who do not hold a valid passport and a visa issued by the Minister of Justice (Article 7, Article 46)
2. A Person who invited another alien by illegal means, such as making a false statement or providing a false reference, or assisting such invitation. Also, an alien who enters Korea by such conduct as a false invitation (Article 7-2, Article 46)
3. A person who falsely applied for a visa or a visa issuance certificate, or assisted such application (Article 7-2, Article 46)
4. A patient with an infectious disease, an addict to narcotics, or a person deemed likely to pose a threat to public health (Article 11, Article 46)
5. A person who intends to enter Korea unlawfully, carrying a firearm, knife, sword, explosives, etc. specified in the Act on the Safety Management of Guns, Swords, Explosives, Etc. (Article 11, Article 46)
6. A person deemed highly likely to engage in any conduct harming the interests or public security of Korea (Article 11, Article 46)
7. A person deemed highly likely to engage in any conduct disturbing economic or social order or good morals (Article 11, Article 46)
8. A mentally disabled person who is void of a capacity of discriminating sense and has no person to assist his or her stay in Korea, a person who cannot afford expenses incurred in relation to his or her stay in Korea, and a person in need of relief (Article 11, Article 46)
9. A person for whom five years have not elapsed after departure from Korea under a deportation order (Article 11, Article 46)
10.  A person who took part in the slaughter or cruel treatment of people on the grounds of race, ethnicity, religion, nationality, political opinion, etc. under an instruction from, or in liaison with, any of the following governments during the period from August 29, 1910 to August 15, 1945:

• The Japanese government;
• Any government in alliance with the Japanese government;
• Any government on which the Japanese government exercised predominant influence

11.  A person who did not went through an entry inspection at a port of entry and departure (Article 12, Article 46)
12.  A person who provided a ship, etc., passport, visa, boarding pass, or other document or any materials usable for entry into or departure from Korea, for the purpose of illegally allowing any alien to enter or depart from Korea or having any alien illegally enter other country via Korea (Article 12-3, Article 46)
13.  A person who harbored or allowed the alien to escape from Korea, or providing a means of transportation for such purpose, in respect of an alien who has illegally entered Korea (Article 12-3, Article 46)
14.  A person who violates any of the terms or conditions of permission imposed by the head of the Regional Immigration Service under Article 13(2)
15.  A person who lands without obtaining permission required under Article 14 (Landing Permission for Crew), 14-2 (Landing Permission for Tourism), 15 (Emergency Landing Permission), 16 (Landing Permission in Distress) or 16-2 (Temporary Landing Permission for Refugees)
16.  A person who violates any of the terms or conditions of permission imposed by the head of the Regional Immigration Service or an immigration control official under Article 14 (Landing Permission for Crew), 14-2 (Landing Permission for Tourism), 15 (Emergency Landing Permission), 16 (Landing Permission in Distress) or 16-2 (Temporary Landing Permission for Refugees)
17.  A person who violated his or her status of stay or the authorized period of stay (Article 17, Article 46)
18.  A person who engaged in any political activity without being permitted by this Act or other Acts (Article 17, Article 46)
19.  A person who engaged in employment in Korea without obtaining the status of stay that entitles him or her to engage in job-seeking activities (Article 18, Article 46)
20.  A person who engaged in activities permitted under a different status of stay without obtaining prior permission to engage in such activities from the Minister of Justice (Article 20, Article 46)
21.  A person who engaged in any activity permitted under a status of stay not covered by his or her original status of stay, without obtaining prior permission to change his or her original status of stay from the Minister of Justice (Article 24, Article 46)
22.  A person continued to stay in excess of the permitted period of stay, without obtaining permission to extend his or her period of stay from the Minister of Justice (Article 25, Article 46)
23.  A person who changes or adds his or her workplace without obtaining permission, in violation of the main sentence of Article 21 (1), or a person who employs an alien or arranges the employment of an alien, in violation of paragraph (2) of the same Article
24.  A person who violates a restriction on his or her residence or the scope of activity, or other matters to be observed prescribed by the Minister of Justice under Article 22
25.  A person who submitted a forged or altered document, etc. as evidentiary materials, submitting an application with a false statement therein, or otherwise filing an application by other improper means, in connection with an application for permission under Articles 20, 21, 23 through 25, 25-2, 25-3, and 25-4
26.  A person who attempts to depart from Korea, without undergoing a departure inspection conducted by an immigration control official at the port of entry and departure (Article 28, Article 46)
27.  A person who violates the obligation to file for alien registration under Article 31, when he or she intends to stay in the Republic of Korea for more than 90 days from the date of entry (Article 31, Article 46)
28.  A person who had an alien provide his or her passport or alien registration certificate to a third person, coerced an alien into providing his or her passport or alien registration certificate to a third person, or arranged to have an alien provide his or her passport or alien registration certificate to a third person, as security for an employment agreement or for the fulfillment of an obligation (Article 33-3, Article 46)
29.  A person who made a false alien registration number under Article 31 (5) and arrange to use such number for his or her own or a third person’s interest in goods or property (Article 33-3, Article 46)
30.  A person who passed on a program that creates alien registration numbers to a third person, spread such program to other persons, or arranged to passing on or spreading such program to other persons (Article 33-3, Article 46)
31.  A person who fraudulently used a third person’s alien registration certificate, provided his or her own alien registration certificate to a third person, knowing that it will be used fraudulently, or arranged to provide a person’s alien registration certificate to a third person (Article 33-3, Article 46)
32.  A person who fraudulently used a third person’s alien registration certificate or arranged to fraudulently use a third person’s alien registration certificate, for his or her own or a third party’s interest in goods or property (Article 33-3, Article 46)
33.  A person released after having been sentenced to imprisonment without labor or heavier punishment (Article 46)

If you have the status of permanent residency, you will not be deported even if you fall into one of the above categories. However, even permanent residents can be deported if they are sentenced to more than five years in prison or commit serious crimes such as sex crimes or drugs.

Deportation is a very serious matter, as foreigners may be banned from entering the country for an extended period of time and, in some cases, permanently. In addition, deportation can result in hefty fines and potential criminal charges.

While most people are familiar with the idea of deportation, others may be more familiar with the term ‘departure order’. Let us break down how the two terms differ.

Departure Order vs. Deportation

Both the terms ‘deportation (강제퇴거)’ and ‘departure order (출국명령)’ are used to remove individuals from a country, but they differ in several ways.

Firstly, the purpose of the court’s decision differs. Departure orders are issued when a foreigner has violated immigration law or overstayed their visa. It is essentially a notice from the immigration office that they must leave within a specific period and may do so on their own. Deportation, however, is a more forceful action taken to remove someone from a country against their will.

Secondly, the consequences of the two differ greatly. Departure orders may result in the individual being banned from reentering, but they generally have fewer long-term consequences than deportation. Deportation can result in not being able to enter the country permanently.

Finally, the process between the cases is not the same. Departure orders allow the foreigner to make their own travel arrangements, while deportation requires numerous court cases and, in some cases, detention until arrangements are made for the individual.

The most important thing to remember is that deportation laws vary between countries. The specifics of deportation should be discussed thoroughly with an expert lawyer in one’s native language if at all possible. Being forced to leave a country can have extremely negative consequences for someone’s life, such as losing a plethora of job opportunities or being separated from loved ones.

Deportation Overruling Case Study

Unfortunately, the truth about Korean law is that it is not easy for foreigners to win a case for revocation of a departure order. In South Korea, the Immigration Office has wide discretion, and the court is typically reluctant to overrule any orders issued by the Immigration Office.

That being said, Seoul Law Group was at the helm of a successfully overruled departure case. Let us examine the case details in further detail and better understand how the client was able to remain in Korea.

1. Case Background Info

The case revolved around a male university student who was living in Korea on a D-2 visa. He kissed a woman without her permission, and she pressed charges against him. He was found guilty of “indecent act by compulsion” (Criminal Act, Article 298) and appropriately fined. As he committed a sexual crime, the Immigration Office declared that he is “a person deemed highly likely to engage in any conduct harming the interests or public security of the Republic of Korea” as well as “a person deemed highly likely to engage in any conduct disturbing economic or social order or good morals”, as stipulated in the Immigration Act (Article 11-[1]3 and 11-[1]4); Article 46-[1]3).

The man was issued a departure order. He turned to Seoul Law Group, whose expert team of lawyers filed an administrative suit seeking revocation of the order. 

2. Case Defense Argument

SLG immediately understood that the best way to approach the case was to examine previous departure orders that had been revoked. Looking at the reasons why, experienced lawyers will be able to find similarities between previous cases and their current one, thereby increasing the odds of turning the court in their client’s favor.

In cases where the court revoked a departure order, the reasoning behind it varied.

Firstly, there was a case in which the Immigration Office had never officially stated the reason for the departure order. This violates the Administrative Procedure Act (행정절차법). Thus, the court was forced to declare that the order was illegal and revoke it (Seoul Administrative Court Decision 2013GuHab30612 Decided July 3, 2014).

Secondly, there have been cases where the reason was not considered strong enough to warrant a departure order.

In one case, a foreigner committed “taking custody of stolen property by negligence” (Criminal Act, Article 362) and was fined. The court considered the subsequent departure order too harsh, as the crime was committed by negligence and was not intentional. The accused in the case was married to a Korean, and this was also taken into account.

Lastly, cases have been overturned when the departure order was not beneficial for national interests.

One case example saw a foreigner who was tested as HIV positive. The Immigration Office issued a departure order based on this information alone. The court revoked the decisions as AIDS has a low risk of transmission, the plaintiff’s family was all in Korea, and to quote the court directly:

“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)

3. Case Outcome

Taking into account all of the aforementioned information, SLG knew that it was best to appeal based on the second and third reasons, as the Immigration Office did not violate due process.

SLG pleaded that the reasoning behind the departure order was not enough to warrant it. As it was a single instance of what is legally considered a minor assault, the order was deemed too strict a punishment. In addition, the victim had already forgiven the plaintiff, expressing her concerns and disapproval of his being deported.

SLG also pleaded that the departure order was not beneficial for national interests. The client was a scholarship student invited to study by the Korean government after passing an examination that only he had successfully passed in his entire native country. He was successful at his university and lived a prosperous life in Korea, and sending him back to his home country would strip away many opportunities for him as well as Korean society that he could actively be a part of.

Thankfully, the court determined to overrule the departure order. As outcomes like this are rare in South Korea, where departure orders are typically not questioned, it goes to show what a strong team of lawyers can do for you. 

If you or anyone you know is struggling with a departure order, please reach out to Seoul Law Group today for preliminary advice and guidance about how to approach the court case. Our multilingual team has decades of combined experience in Korean law and will happily provide you with straightforward information that may just allow you to remain in the country.