Departure order after a fine for special assault

Hello, I am attorney Joo Youngjae of Saeyeoul Law Firm.

When a foreigner residing in Korea receives a criminal punishment, they may receive a departure order or a deportation order from the immigration office. In particular, there are many unfortunate cases where, despite receiving a relatively light punishment such as a fine, people lose the foundation of life they have built over many years and face the risk of separation from their family.

Today, I would like to introduce a successful case in which a client received a summary order of a 3,000,000 Korean won fine for special assault and then received a departure order from the head of the Daejeon Immigration and Foreigner Office, but through the assistance of attorney Joo Youngjae, the departure order was cancelled and the client was able to continue residing in Korea.

1. What is a 'departure order'?

A departure order is an administrative disposition in which the head of a local immigration and foreigner office orders a foreigner who has violated the Immigration Act to leave the Republic of Korea.

Article 46 of the Immigration Act (출입국관리법) specifies the foreigners subject to deportation. Typically, this includes 'a person who has been sentenced to imprisonment without labor or a heavier punishment and released' (item 13), or a person who, after entry, has 'reasonable grounds to be recognized as likely to engage in conduct harming the interests of the Republic of Korea or public safety' (article 11, paragraph 1, item 3).

For those who fall under the grounds for deportation but voluntarily wish to leave the country at their own expense, a 'departure order' is issued as a milder form than deportation (article 68, paragraph 1, item 1 of the Immigration Act). If a person does not leave by the set deadline even after receiving a departure order, a deportation order may be issued (article 68, paragraph 4 of the Immigration Act).

2. Course of the case

The client's situation

The client was a foreign national of Chinese nationality, living a stable family life in Korea with a spouse holding permanent residence (F-5) status and an elementary school son. The client had also acquired residence (F-2) status through the spouse's invitation, residing lawfully, working diligently with the wife, and supporting the family.

Occurrence of the incident and the departure order disposition

Around September 2022, while heading to a construction site, the client got into a dispute with a management employee over parking. In that process, the other party first pushed the client's wife, using physical force. Enraged by this, the client fought with the other party and was indicted for special assault and assault causing injury. A summary order of a 3,000,000 Korean won fine was confirmed.

Thereafter, the client appeared at the Daejeon Immigration and Foreigner Office and underwent an investigation. Based on the fine, the office determined that the client was 'a person with reasonable grounds to be recognized as likely to engage in conduct harming the interests of the Republic of Korea or public safety' and issued a departure order (hereafter 'the instant disposition') ordering departure by January 26, 2024.

3. Assistance and arguments of attorney Joo Youngjae

Due to the sudden departure order, the client and his family faced the risk of losing their peaceful daily life entirely. Attorney Joo Youngjae promptly reviewed the case and, simultaneously filing an administrative lawsuit to cancel the departure order and an application for suspension of execution, actively contested the illegality of the departure order as follows.

Grounds for the disposition do not exist

The client's crime was not premeditated but occurred impulsively in the course of a parking dispute, enraged by the other party's unjust interference and the use of physical force against his wife. Also, the victim's fault contributed considerably to the incident, the client deeply repented, and had no other criminal record in Korea. Therefore, it was argued that it is unjust to conclusively deem the client 'a person likely to harm public safety' based solely on this crime.

An unlawful disposition that deviates or abuses discretion

Even if grounds for the disposition were recognized, it was strongly argued that the instant disposition violates the principle of proportionality and deviates or abuses discretion.

The client has his life foundation in Korea with a spouse who is a permanent resident, a young son attending an elementary school in Korea, and elderly in-laws, and he is the de facto head of household supporting them.

If the client leaves Korea, the family will face serious difficulties in making a living, and in particular, the young son will suffer great emotional harm from being separated from his father.

Thus, the disadvantages the client and his family would suffer are enormous and difficult to recover, while the public interest to be achieved by making the client leave is very minor or unclear.

Therefore, it was argued that the instant disposition overemphasizes the public interest compared to the private interest and is unlawful in violation of the principle of proportionality.

4. Outcome of the case: cancellation of the departure order and permission to stay

As a result, shortly after the lawsuit and the application for suspension of execution were filed, the defendant, the head of the Daejeon Immigration and Foreigner Office, accepted the arguments of attorney Joo Youngjae and, on its own authority, cancelled the departure order and issued a disposition extending the client's period of stay.

Thus, the client no longer needed to proceed with the lawsuit, escaped the crisis of departure, and was able to continue his life in Korea with his beloved family. Since there was no longer any need for the lawsuit, the client withdrew the complaint.

5. Conclusion

When a foreigner becomes involved in a legal problem on unfamiliar soil, they are bound to be even more flustered and at a loss. In particular, a departure order issued after a criminal punishment has an irreversible impact on the individual's life and the entire family.

However, as in the case above, just because a person received a criminal punishment does not necessarily mean they must leave the country. The illegality of the disposition can be contested by comprehensively considering the severity of the legal violation that served as the basis for the disposition, the period of domestic stay, family relations, and humanitarian grounds.

If you are experiencing difficulties due to an unjust departure order or deportation order, we recommend that you consult with an immigration specialist lawyer immediately after receiving the disposition document and prepare a swift and accurate legal response.