🎉Ruling That Article 63(1) of the Immigration Act of the Republic of Korea Is Incompatible with the Constitution 🎉
On 23 March 2023, the Constitutional Court of Korea (CCK) issued a decision that Article 63(1) of the Immigration Act is incompatible with the Constitution because it infringes on the personal liberty of foreign nationals. The provision allows a person subject to a deportation order to be detained in a detention facility until deportation becomes possible, if the person cannot be deported immediately.
The parts found to be unconstitutional were (1) that there is no upper limit on the detention period, so indefinite detention is possible, and (2) that there is no procedure for an objective third party to judge whether the detention is appropriate. On the former, the CCK noted that the liberty infringed is greater than the purpose of immigration control warrants, and judged that it violates the “principle against excessive restriction.” On the latter, it decided that, because detention is a compulsory measure that restricts personal liberty, it must be controlled by a neutral body independent of the Immigration Office, and that the absence of such control violates the “principle of due process.”
In response, the National Human Rights Commission of Korea (NHRCK) issued a statement welcoming the decision as “a meaningful decision that marks a major milestone for the domestic system of migrant detention.” Lawyers for a Democratic Society (Minbyun; 민주사회를위한변호사모임) also issued a commentary welcoming the decision, saying its significance is “very great” because the CCK changed its two earlier decisions, in 2016 and 2018, which had found the provision constitutional, and declared it incompatible with the Constitution; the commentary also urged the National Assembly to legislate promptly.
Civil society organizations including Minbyun and the Korea Refugee Rights Network (KORIN) urge the National Assembly and the Ministry of Justice (MOJ) to amend the Immigration Act and related laws in line with the intent of the CCK decision. To do so, the following must be achieved without fail.
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Completely prohibit the immigration detention of children
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Set a reasonable and human-rights-friendly upper limit on detention
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When deciding to start or extend detention, have an independent neutral body or a judicial body review and control the legality of the detention
We welcome the decision that the human-rights-violating provision is incompatible with the Constitution, and we hope that an appropriate amendment of the Immigration Act will bring us closer to a society that leaves no one’s rights behind.
