Court upholds requirement for foreign instructors to submit drug and HIV health certificates

Who this helps

This may help foreign instructors staying in Korea who were asked for a drug and HIV health certificate in connection with a stay extension permit.

Case overview

Case number

2020가단5322063

Court

Seoul Central District Court

Posted on original board

Feb 21, 2022 (Mon)

Topic

Stay Status & Period of Stay

Original title (Korean)

법무부가 국내 체류중인 외국인의 강사에게 체류기간 연장허가와 관련하여 마약복용 여부 및 HIV 감염 여부를 확인하기…

The Ministry of Justice required foreign instructors staying in Korea to submit a health certificate in connection with permission to extend their period of stay. The certificate was meant to check for drug use and HIV infection. The basis for the requirement was the guideline "Measures to Strengthen Residence Management for Foreign Language Conversation Instructors [E-2]".

Is it unlawful to ask a foreign instructor for a drug and HIV health certificate when extending their stay?

The Ministry of Justice asked a foreign instructor staying in Korea to submit a health certificate when seeking a stay extension permit. The certificate was meant to check for drug use and HIV infection. The request was based on a guideline on strengthening stay management for foreign language conversation instructors (E-2). The dispute was whether this request broke constitutional rights or international covenants.

How the court ruled

The court judged that the content of this guideline cannot be seen as clearly lacking objective reasonableness. Rather, it found that the guideline accords with the purpose of Article 11(1)(1) of the former Immigration Control Act, and that its legitimacy and reasonable necessity are recognized. The court therefore judged that it is difficult to regard the requirement as violating the constitutional right to equality, freedom of occupational choice, or the secrecy and freedom of private life, or as violating international covenants.

What to check in a similar situation

Details on the health certificate requirement for a stay extension permit can be checked with the immigration office or the Ministry of Justice. The Seoul Central District Court's records show how this case was decided.

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

Terms explained

Stay extension permit

This is the approval a foreign national needs to remain in Korea beyond the period first granted.

Health certificate

This is a document from a medical check. Here it was used to confirm drug use and HIV infection status.

Guideline

This is an internal policy set by an agency. Here it covered stay management for E-2 foreign language conversation instructors.

Objective reasonableness

This means a rule has a sound basis that can be explained. The court did not find this clearly lacking in the guideline.

More rulings on this topic

• Court upholds refusal to extend overseas travel period for holder of UK high-skilled visa · Seoul Administrative Court
• Court rules departure order and residence permit revocation against foreigner caught while working one day-labor shift unlawful · Seoul Administrative Court
• Court upholds refusal to permit change of residence status applied for together with a refugee application on the stay expiry date · Seoul Administrative Court

See all 9 rulings on Stay Status & Period of Stay →

Frequently asked questions

Who was asked to submit the health certificate?

A foreign instructor staying in Korea was asked. The request was tied to a stay extension permit.

How did the court rule on the requirement?

The court found the requirement lawful. It saw justification and reasonable necessity, and it fit the purpose of the former Immigration Act provision. It found it hard to say the request broke equality, freedom to choose an occupation, privacy, or international covenants.

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.