Ruling cancelling the refusal of a stay extension, etc., for a foreign national married to a Korean citizen

Who this helps

This may be useful as a reference for a foreign national who registered a marriage with a Korean citizen and was refused a change to spouse status over a marriage certificate issue under home-country law.

Case overview

Court

Daegu District Court

Date of judgment

Jul 27, 2001 (Fri)

Topic

Marriage & Family

Original title (Korean)

외국인의 체류자격을 규정한 출입국관리법 시행령 제12조 [별표 1] 소정의 ‘배우자’라 함은 우리나라 법률에 의하여…

A Pakistani national stayed in Korea on a non-professional employment visa. After registering a marriage with a Korean citizen, this person applied to change status to that of a spouse of a Korean citizen. The head of the immigration office refused, saying there was no valid marriage certificate under Pakistani law and no genuine married life. The applicant then sued to cancel that decision.

Can a change to spouse status be refused because there is no marriage certificate under home-country law?

A Pakistani national staying on a non-professional employment visa registered a marriage with a Korean citizen. The person then applied to change to the status of spouse of a national. The head of the immigration office refused, saying there was no valid marriage certificate under Pakistani law and no genuine married life. The court read "spouse" in the enforcement decree as a foreigner whose marriage to a Korean citizen is recognized under Korean law, not under the foreigner's home-country law.

How the court ruled

The court held that 'spouse' in the enforcement decree on status of stay means a foreign national whose marriage to a Korean citizen is recognized as established under Korean law, not one whose marriage is established under the law of the home country. The court found that the applicant had registered the marriage and had continued to live together with the spouse. It therefore cancelled the refusal as an unlawful decision based on a mistaken view of the facts, and ordered the authority that made the decision to bear the litigation costs.

What to check in a similar situation

Official immigration and foreigner offices can confirm what reasons and documents are used when reviewing a stay status change. Courts can confirm how a lawsuit against a refusal proceeds.

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

Terms explained

change of stay status

This means a foreign national staying in Korea switches from the current status to a different stay status.

spouse

In this ruling, it means a foreigner whose marriage to a Korean citizen is recognized under Korean law.

cancellation of a refusal

This is when a court finds an agency's refusal unlawful and removes its effect.

home-country law

This means the law of the country whose nationality the foreigner holds. The court did not use it as the standard for who counts as a spouse.

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 filed the lawsuit?

A Pakistani national who had stayed on a non-professional employment visa filed it. The person had registered a marriage with a Korean citizen and asked the court to cancel the refusal.

How did the court decide?

The court used Korean law to decide who counts as a spouse. It found the marriage was registered and the couple kept living together, so it cancelled the refusal.

Does this result apply as-is to every similar case?

No. This is the decision in that one case and does not apply as-is to other cases.