2020HunGa1 & 2021HunHa10 (combined)
| Publisher | Republic of Korea: Constitutional Court |
| Publication Date | 23 March 2023 |
| Other Languages / Attachments | Decision in Korean |
| Related Document(s) | Submission by the Office of the United Nations High Commissioner for Refugees in the case of 2020HunGa1 and 2020HunBa119 before the Constitutional Court of the Republic of Korea |
| Cite as | 2020HunGa1 & 2021HunHa10 (combined), Republic of Korea: Constitutional Court, 23 March 2023, available at: https://www.refworld.org/cases,KOR_CC,6437fccd4.html [accessed 17 May 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
The Constitutional Court ruled on the unconstitutionality of the provision in question (Article 64(1) of the Immigration Act) which allows for indefinite detention of foreigners given deportation order. The majority opinion (6 out of 9 Justices) found that while the provision has a legitimate purpose and is an appropriate means to the purpose, it fails the balancing test for the following reasons: the effect of the provision that leads indefinite detention is outside of the purpose of immigration detention, which is intended to be temporary and short; indefinite detention solely for effective administration of deportation is an unacceptable restriction of detainee's personal liberty; considering various State practices and international norms, it is not impossible to set a temporal limit to immigration detention and resort to other measures such as limitation on the area of residence, designating a guarantor, receiving a deposit, or monitoring by officials, etc.; and current procedures for appealing detention orders, receiving temporary release therefrom, or receiving Minister of Justice's approval for extension of detention does not appropriately resolve the problem of indefinite detention.
The majority opinion also found that the lack of third party's review and control of the commencement and extension of detention order violates the principle of due process. It found that the same principle is also violated due to lack of procedures for detainees to submit opinion before the detention order is issued. On the possibility of increasing number of asylum-seekers who would be released from detention, the Court opined that the issue should be addressed by the authorities' prioritized review of such applications and policy changes to prevent abusive claims. Minority opinion (3 Justices) dissented, finding that the policy considerations of limiting illegal immigration should be given priority. The Court allowed until 31 May 2025 for the provision to be amended, until which the provision would remain in force.
