The Review and Decision Criteria for Foreign Nationals with Final Criminal Fines allow consideration of continued residence on humanitarian grounds even where the removal criteria are met. An F-4 visa holder who has built and supported a family in Korea may challenge a departure order on the ground that the immigration authority overlooked that family life. Where the authority acknowledged the family circumstances but ordered departure because of the seriousness of the offence, the challenge must address that reasoning.
Family life in Korea with a foreign spouse
The Guidelines on the Handling of Entry Restrictions and Related Matters recognize humanitarian circumstances extending beyond spouses and lineal relatives of Korean nationals or permanent residents. They also include foreign nationals of Korean descent who have established their lives in Korea, and people raising minor children with an established home and livelihood here. Family life in Korea may support humanitarian grounds even where the spouse and children are all foreign nationals.
Living together as a family in Korea, sending children to school here, and earning a livelihood through employment or business all support the existence of an established life in Korea. Explaining the gaps in childcare or loss of family income that a parent’s departure would cause can also demonstrate why continued residence or re-entry is needed. Childcare and family income may support humanitarian grounds alongside circumstances such as a family member’s serious illness.
Assessment of ties to Korea in DUI departure-order cases
Long residence alone has not been enough to overturn a departure order. In one case, an overseas Korean with F-4 status who had lived in Korea for about eight years received a KRW 8 million fine for driving under the influence (DUI). The person relied on having no previous conviction and having worked in Korea. However, the assessment also took into account the high blood alcohol concentration, the absence of an established family in Korea, and the lack of evidence of long-term employment at a particular workplace. The departure order was upheld.
By contrast, a departure order was overturned in a case involving an E-9 non-professional employment visa holder fined KRW 5 million for DUI. The original review decision stated that there were no humanitarian grounds. On administrative appeal, however, the spouse’s employment in Korea, the child’s birth in Korea, and the person’s long-term employment were confirmed, establishing that the family had built its life here. The absence of other criminal or regulatory violations and of accident-related injury or property damage was also considered.
Overlooked humanitarian grounds and repeat offending
Where a removal decision rests on a finding that there are no humanitarian grounds, a challenge addresses the specific facts that contradict that finding. If the spouse’s employment, childcare arrangements, and the person’s livelihood in Korea are established but were not taken into account, identifying how those facts fall within the grounds recognized by the guidelines can expose an omission or error in the assessment. If the authority did not consider an exception permitting continued residence because the removal criteria were met, the issue is whether it exercised its discretion by applying the review criteria to the individual circumstances.
Family records may establish that a person has children, but a claim that the spouse cannot readily care for them alone needs support from the actual division of childcare responsibilities and the spouse’s working arrangements or health. Where a parent’s illness requires the person to stay in Korea, the medical certificate needs to be supported by evidence of the help the parent currently needs and the care the person has been providing.
Where the authority acknowledges family life but considers departure necessary because of repeated offending, submitting more of the same family records does little to address the reason for the decision. Reoffending after previously receiving permission to remain is particularly adverse because the person offended again despite earlier leniency. Alongside the family’s continuing need for support, the submissions need to address why the offending recurred and the concrete measures actually implemented to prevent it from happening again.
Law Firm Lawyeon Immigration Law Center provides legal services specialized in the integrated handling of Korean immigration and visa matters together with criminal cases and immigration-violation reviews, built on extensive case experience, professional networks, and practical knowledge.
The Center brings together attorneys Junwoo Min, Dohyun Nam, and Seungchul Kim, criminal-law specialists with extensive immigration advisory experience, and Senior Advisor Taemin Ahn. Mr Ahn has served at the Seoul Global Center, headed a Ministry of Justice Global Start-up Immigration Center, and served on the Foreign Workers' Rights Protection Council of the Seoul Regional Employment and Labor Administration. Together, they established Law Firm Lawyeon's dedicated immigration practice.
In particular, for departure orders and entry-ban dispositions that follow a final criminal conviction, the Center presents effective solutions through an integrated strategy spanning criminal defense, objections to the disposition, and applications to lift the entry ban, and it supports stable business activity in Korea by managing many clients' immigration risk.