Deportation of Foreigners Married to Koreans

A Seoul Administrative Court case sheds light on the difficulties, for less economically secure Koreans, to obtain legal residency for their spouses. The situation is better for those with significant assets and stable employment. NGOs, in Korea, are stepping up, but with low birth rates in Korea, it seems like the Korean Government must consider allowing working-class Koreans with few chances of local marriage prospects to be able to more easily sponsor a spouse for residency and eventually citizenship. The reality is that the working class, in Korea, is more likely to grow the population, and just because the parents are poor does not mean the children shall be poor.

For an article on challenging a Korean Deportation Order, please see: Korean Deportation Orders.

Deportation of a Foreigner Married to a Working-Class Korean National

A Foreign National entered Korea in 1996 and registered her marriage to a Korean Citizen in 2015. In 2020, the Foreign National received a deportation order from the Korean Immigration Services for “not staying within the scope of her residence qualification.” The Foreign National voluntarily departed Korea based on this deportation order.

In 2022, the Foreign National re-entered Korea on a short-term visitor (C-3) visa and departed the country in compliance with the C-3 visa. The same year, the Foreign National applied for a marriage visa (F-6-1). The visa was denied due to “insufficient financial capacity of the inviter, etc.”

The Foreign National and Korean Citizen husband filed a lawsuit to the Seoul Administrative Court (2023구단6420). The Seoul Administrative Court dismissed the complaint, thus, upholding the decision to deny the marriage visa.

The Seoul Administrative Court noted that: “According to . . . the income certificate of the [Korean National], the total income of the alienated person in 2021 is only 25,378,894 won (= business income 1,378,894 won + employment income 24,000,000 won), and of that, the employment income is income earned . . . while working at a restaurant, which appears to have been a similar amount every month throughout 2021 (i.e., [Korean National] appears to have earned approximately 2,000,000 won in employment income every month while working at a restaurant in 2021). According to the 2022 income certificate, the 2022 income is only 2,624,906 won (business income). The Plaintiff submitted documents proving the income requirement for the payment period from September 2021 to September 2022. Considering that the defendant also submitted a ‘Certificate of Payment of Health and Long-Term Care Insurance Premiums’ and that the defendant’s annual income for the past year based on the date of visa application, which was calculated by applying the standard coefficient to the amount of health insurance premiums on the certificate, was only approximately 14,000,000 won, it is clear from the calculation that C’s annual income for the past year (October 13, 2021 – October 12, 2022) based on the date of application for this case (October 13, 2022) is less than KRW 19,560,510, and therefore [the Korean National] did not meet the income requirement stipulated in the notice for this case.

According to the “Notice on Requirements for Issuing Visas for the Purpose of Marriage and Cohabitation and Criteria for Exemption from Examination” which was declared in pursuant to Article 9-5, Paragraph 1, Subparagraph 4 of the Enforcement Decree of the Immigration Control Act of Korea, the Korean National’s annual income (before tax) must be at least KRW 19,560,510 for a two-person household.

The Court opined that: “In the case of a visa for marriage immigration, it is easier to obtain than other visas . . . so stricter management is required in issuing visas, and the income requirement for visa issuance for marriage immigration stipulated in the Notice announced by the Minister of Justice in accordance with the Immigration Control Act is an important standard for determining whether the plaintiff can establish a stable married life in Korea and settle down as a sound citizen . . . It cannot be said that the disposition in this case violates the principles of proportionality and equality or significantly loses validity from a social perspective.”

Sean Hayes is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw, and IPG Legal is consistently ranked Top Dispute Resolution Law Firm for our litigation services.

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