Forced Eviction Foreigners 'Indefinite Detention' Again Constitutional?… Constitutional Court, Public Hearing

"No Upper Limit on Protection Period" vs "Extended Protection Period if Forced Eviction is Obstructed"
Constitutional Court, 2014 Constitutional Complaint Dismissed... 2018 Decision 5 (Unconstitutional) vs 4 (Constitutional) Upholding Constitutionality

Near the Insoo Committee in Jongno-gu, Seoul, members of Haengdonghaneun Nanmin held a press conference for delivering a letter to the new president last May. Photo by Jinhyung Kang aymsdream@

[Asia Economy Reporter Heo Kyung-jun] A public hearing on the constitutionality of the Immigration Control Act provision that allows for the de facto "indefinite detention" of foreigners under deportation orders in protective facilities until they are repatriated will be held on the 13th. This is the third time the Constitutional Court has reviewed the Immigration Control Act, which stipulates protective measures for foreigners subject to deportation.

The Constitutional Court will hold a hearing on the constitutional review request concerning Article 63, Paragraph 1 of the Immigration Control Act at 2 p.m. on the same day. The current Article 63, Paragraph 1 of the Immigration Control Act stipulates that foreigners who have been ordered to be deported but cannot be immediately repatriated due to lack of passports or transportation means may be protected in protective facilities.

Previously, in its first ruling in 2014, the Constitutional Court dismissed the constitutional complaint with a 5 (dismissal) to 4 (unconstitutional) vote, and in 2018, it ruled the provision constitutional with a 5 (constitutional) to 4 (unconstitutional) vote. For a ruling of unconstitutionality, at least six of the nine justices must agree.

Within and outside the legal community, there is speculation that the outcome may change this time because Yoon Nam-seok, Chief Justice of the Constitutional Court, and Justice Lee Seon-ae, who both expressed opinions of unconstitutionality in the 2018 decision, are participating in the current case's hearing.

This case was filed by Mr. A, an Egyptian national, and Mr. B, a Bangladeshi national. Mr. A entered Korea in 2018 (at age 17) and visited the Immigration and Foreigners Office to apply for refugee status but was refused on the grounds that "an adult must accompany him," and after his stay expired, he received a deportation and protective order.

Mr. B entered in 2017 (at age 32) and applied for refugee recognition at the Immigration and Foreigners Office, receiving a temporary stay status (G-1-5). Later, the Immigration and Foreigners Office issued a deportation and protective order, citing that he entered through false invitation acts.

Mr. A and Mr. B each filed lawsuits at the Suwon District Court and Seoul Administrative Court seeking cancellation of the deportation and protective orders and requested a constitutional review of Article 63, Paragraph 1 of the Immigration Control Act, arguing that it violates the principles of due process and proportionality and infringes on personal freedom. Both courts accepted their requests and referred the constitutional review.

The courts requesting the constitutional review pointed out that the provision only states "until repatriation is possible" without an upper limit on the protection period, allowing for "indefinite" detention in facilities, and that while depriving the personal freedom of foreigners subject to deportation, it does not require a warrant unlike arrest or detention.

The legal representatives of Mr. A and Mr. B argued, "The provision under review does not set an upper limit on the protection period, enabling indefinite protection, and although refugee applicants are prohibited from forced repatriation, it provides protection for repatriation purposes targeting refugee applicants. The system for extending protection periods and filing objections does not function as a practical remedy."

On the other hand, the Minister of Justice, as an interested party, countered, "If the deportation subject obstructs or evades the execution of deportation, the protection period may inevitably be prolonged. Therefore, stipulating protection 'until repatriation is possible' is unavoidable to achieve the legislative purpose."

At the public hearing, Professor Choi Gye-young of Seoul National University Law School will appear as a reference witness for Mr. A and Mr. B, and Professor Oh Jeong-eun of Hansung University’s Department of International Migration Cooperation will appear as a reference witness for the Ministry of Justice to express their opinions on the constitutionality of the Immigration Control Act.

This content was produced with the assistance of AI translation services.