Seoul Administrative Court, November 2, 2022, Case No. 2022Gudan53597
After a judgment setting aside an asylum seeker’s departure order became final, the immigration authority refused the applicant’s request to change to G-1-5 status because of a history of unauthorized employment. The court rejected the argument based on the earlier judgment’s binding effect but set aside the new refusal after examining the circumstances of the violations, the nature of the asylum application, and the practical effect of withholding status.
1. Key issues
(a) Scope of the earlier judgment’s binding effect
The applicant argued that refusing immigration status on the basis of unauthorized employment already examined in the departure-order proceedings violated the earlier judgment’s binding effect. The court held, however, that a departure order and a refusal to change immigration status were separate decisions with different requirements, purposes, and effects. Even if the grounds for the two decisions were substantially the same, cancellation of the departure order did not, by itself, render the subsequent status refusal void. The court therefore dismissed the claim for a declaration of nullity and considered, under the alternative claim for cancellation, whether the new refusal exceeded or abused the authority’s discretion.
(b) Proportionality of the status refusal
The refusal notice stated that the applicant had not met the requirements for a change of status. After two information-disclosure requests, the immigration authority identified its specific reason: the applicant had worked without authorization at a massage establishment after entering Korea under B-1 status, which did not permit employment, leading to an adverse assessment of their conduct during their stay. While recognizing the authority’s discretion over immigration status, the court examined whether that employment history established a risk to public order or public morals and whether the public benefit of refusing status outweighed the disadvantage to the applicant.
The applicant stated that they had not known the establishment provided sexual services when they took the job and had subsequently been forced into unwanted prostitution through the owner’s coercion and confinement. The court took into account both the employment and the possibility that prostitution had occurred. In light of the circumstances, however, it found insufficient grounds to conclude that the applicant posed a risk serious enough to warrant withholding G-1 status. Those circumstances had also been considered in the departure-order proceedings, and no new evidence or other reason to change that assessment emerged in the subsequent case.
Filing for asylum after the authorized stay had expired was also insufficient to establish abuse of the system. The applicant stated that the owner had confiscated their passport and that they had applied after escaping from the establishment. That account made it difficult to treat the delay simply as an attempt to prolong their stay. This was also the applicant’s first asylum application, and the alleged assault and confinement by family members after resisting a forced marriage could potentially support refugee recognition. The court therefore held that filing after an overstay did not, on these facts, establish abuse of the asylum system.
The refusal also had limited practical effect. An appeal against the denial of refugee status was pending, and the court expected the departure deadline to be deferred until the asylum proceedings concluded even if G-1 status was refused. Withholding status was therefore unlikely to secure the applicant’s departure, while leaving the applicant in a precarious position without immigration status.
The public interest in preventing use of the asylum system for employment could also be served through strict scrutiny of an application for permission to work. The court found that refusing immigration status despite that alternative was excessive.
2. Implications
Even where a judgment setting aside a departure order does not bind the authority in a subsequent G-1 decision, the employment circumstances examined in the earlier proceedings and the court’s assessment of them can support a challenge to the new refusal. If the earlier court considered circumstances such as coercion leading to the unauthorized employment, but the later refusal relies on the employment record alone to find a risk to public order, the applicant can identify the circumstances omitted from that assessment and seek to have the refusal set aside. Where subsequent violations or new evidence have emerged, the applicant can also contest whether they justify changing the earlier assessment of risk.
For an applicant refused G-1 status who receives only departure-deadline deferrals during asylum litigation, continued deferrals do not eliminate the disadvantage caused by withholding immigration status. Where there are grounds against treating the asylum application as abusive and departure is unlikely before the litigation concludes, this judgment supports challenging the public benefit of the refusal and seeking its cancellation. In particular, if the refusal rests on concern that the asylum process is being used to obtain employment, the applicant can question the need to withhold immigration status when work-permit scrutiny could address that concern.