Ruling: suspended sentence of confinement or more can still lead to deportation

Who this helps

This may help people curious about how the deportation rule was read when someone was tried without detention and received a suspended sentence of confinement or more.

Case overview

Case number

2015누41106

Court

Seoul High Court

Date of judgment

Sep 9, 2015 (Wed)

Topic

Departure Orders, Deportation & Enforcement

Original title (Korean)

출입국관리법 제46조 제1항 제13호 '석방된 사람'에는 수사 또는 재판과정에서의 구속 여부와는 상관없이…

The former Immigration Act had a provision making a person who was sentenced to confinement or a heavier penalty and released subject to deportation. The disputed issues were whether a person tried without detention and given a suspended sentence of confinement or heavier falls under this provision, and whether the disposition exceeded discretionary authority.

Is a person with a suspended sentence after a trial without detention a 'released person' subject to deportation?

The former Immigration Act had a rule making people sentenced to confinement or more and then released subject to deportation. The dispute was whether a person tried without detention and given a suspended sentence also fell under it. The court held that anyone sentenced and out of the trial process is included, whether or not detained. It also looked at whether the measure exceeded discretion and found that hard to accept.

How the court ruled

The court held that 'released person' includes anyone sentenced and freed from court proceedings, whether or not arrested or detained during investigation or trial. This includes those whose sentence is not yet carried out, those whose execution of sentence was suspended or exempted, and those who have completed it. Considering all the circumstances the plaintiff raised, the court found it hard to say the disadvantage was excessive compared with the public interest, or that discretion was exceeded or abused.

What to check in a similar situation

Immigration and foreigner offices can confirm whether a person falls under the deportation rule and how the procedure works. Courts can confirm how a lawsuit challenging such a measure was decided.

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

Terms explained

released person

In this ruling, it means a person who was sentenced and is out of the trial process, whether or not detained. It covers those awaiting execution, those with suspension or exemption, and those who finished serving.

suspended sentence

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

deportation

An administrative measure by which the state forces a foreign national who meets certain grounds to leave the country.

abuse of discretion

When an agency goes beyond the range the law allows or uses its power excessively.

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

Who filed the lawsuit?

The plaintiff, who received a measure related to deportation, filed it and argued the measure was unlawful.

How did the court rule?

It held that 'released person' includes anyone sentenced and out of the trial process, whether or not detained. It also found it hard to say the measure exceeded or abused discretion.

Does this result apply as-is to similar cases?

The ruling is a decision on that particular case and cannot be taken to apply as-is to other cases.