Denial of Status Change for Overstayer Married to Naturalized Spouse Upheld

Who this helps

This may be useful for people who stayed in Korea unlawfully for a long time and applied for a status change as the spouse of a naturalized citizen.

Case overview

Case number

2016누4547

Court

Daegu High Court

Posted on original board

Aug 10, 2016 (Wed)

Topic

Marriage & Family

Original title (Korean)

체류기간연장등불허가처분취소(대구고등법원 2016누4547)

A foreigner who had long overstayed in Korea married a person who had gained Korean citizenship through marriage naturalization. The foreigner applied to change status to spouse of a citizen (F-6). The head of the immigration office said permission could not be granted and notified the foreigner to leave the country. A lawsuit was then filed to cancel this decision.

Can a status change be refused when the spouse became a citizen through marriage naturalization?

A foreign national who had long overstayed married a person who gained Korean nationality through marriage naturalization. The foreign national applied to change status to spouse of a citizen (F-6). The immigration office head refused and notified the person to leave the country. The court examined whether this refusal went beyond or abused the office's discretion, and found that it did not.

How the court ruled

The head of the immigration office notified the foreigner to leave, on the ground that if a spouse who naturalized through marriage has held citizenship for less than 3 years, a status change cannot be permitted, even if the couple conceived or had a child in Korea. The court found that this decision did not exceed or abuse discretionary power. The first-instance ruling was reversed, and the applicant's claim was dismissed.

What to check in a similar situation

Details on how the immigration office handles status change applications for spouses of naturalized citizens can be confirmed with the local immigration office. Case records can be confirmed with the court.

• Marriage migrant (F-6) documents
• Divorce guide
• Changing your status of stay
• Contacts: Immigration Contact Center 1345

Terms explained

Status change permit

An approval from the immigration authority to switch from one residence status to another. It is decided on an application.

Marriage naturalization

Gaining Korean nationality through marriage to a Korean citizen. In this case, the spouse had gained nationality this way.

Abuse of discretion

When an agency goes beyond the limits of its decision-making power or uses it improperly. The court found no such problem here.

More rulings on this topic

• Stay extension denial unlawful: Korean spouse mainly caused marriage breakdown · Seoul Administrative Court
• Ruling that a refusal to issue a marriage immigration visa was not unlawful · Seoul Administrative Court
• Ruling Upholds Refusal to Issue a Marriage Migration Visa · Seoul Administrative Court

See all 15 rulings on Marriage & Family →

Frequently asked questions

Who brought the lawsuit and what was it about?

A foreign national who had long overstayed sued to cancel the refusal of a status change and the notice to leave.

How did the court decide?

The Daegu High Court found no abuse of discretion by the immigration office head. It overturned the first-instance judgment and dismissed the claim.

Does this result apply to every similar case?

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