Ruling that a foreigner given a suspended sentence is also subject to deportation

Who this helps

This may help people wondering whether a foreign national who received a suspended sentence without being detained can be subject to deportation.

Case overview

Case number

2014누54013

Court

Seoul High Court

Date of judgment

Nov 11, 2014 (Tue)

Topic

Departure Orders, Deportation & Enforcement

Original title (Korean)

불구속상태에 있다가 집행유예를 선고받은 외국인이 출입국관리법 제46조 제1항 제13호에서…

The case concerned whether a foreigner who was not detained and then received a suspended sentence falls under the category of persons subject to deportation in Article 46, paragraph 1, item 13 of the Immigration Act. Under this provision, persons subject to deportation are 'persons sentenced to imprisonment or a heavier penalty and released'.

Can a foreign national given a suspended sentence without detention be subject to deportation?

The dispute was whether a foreign national who received a suspended sentence while not detained is a person who was sentenced to imprisonment or heavier punishment and released, under Article 46(1)(13) of the Immigration Act. The court found that such a person falls under this provision. Not being detained did not change that view.

How the court ruled

The court found that a foreigner who was not detained and then received a suspended sentence is 'a person sentenced to imprisonment or a heavier penalty and released' under Article 46, paragraph 1, item 13 of the Immigration Act.

What to check in a similar situation

Procedures on deportation can be checked with the immigration and foreigner offices, and the ruling itself with the court concerned.

• Find your immigration office
• Extending your period of stay
• Contacts: Immigration Contact Center 1345

Terms explained

Deportation

An administrative procedure in which the state forces out a foreign national who meets grounds set by the Immigration Act.

Suspended sentence

A sentence is handed down, but its execution is put off for a set period.

Without detention

Being tried while not held in custody.

More rulings on this topic

• Suit to confirm no duty to pay Immigration Act fine under notification disposition inadmissible · Seoul Administrative Court
• Case on whether a decision rejecting an objection to a detention order can be challenged in court · Seoul High Court
• Ruling on a Departure Order Issued to a Person Who Entered on Working Holiday (H-1) Status · Seoul Administrative Court

See all 18 rulings on Departure Orders, Deportation & Enforcement →

Frequently asked questions

What was the issue in this case?

The issue was whether a foreign national given a suspended sentence without detention is a person sentenced to imprisonment or heavier punishment and released.

How did the court decide?

The Seoul High Court found that such a person falls under the provision and is subject to deportation.

Does this result apply to every similar case?

No. It is the court's decision in that case and does not apply as is to other cases.