Article 63(1) of the Immigration Control Act allows immigration authorities to detain a migrant who has received a deportation order in a detention facility “until deportation becomes possible” whenever immediate removal is not practicable. Because no upper limit on detention exists and no independent review of whether detention is genuinely necessary is required, the provision has enabled indefinite detention lasting years and raises serious human-rights concerns. In March 2023 the Constitutional Court of Korea ruled the provision incompatible with the Constitution and set a deadline of 31 May 2025 for legislative amendment. This article explains the problems with the provision, what the courts have said, what the proposed amendment contains, and how all of this compares with international standards.
Problems with the Current Provision
A Structure That Allows Indefinite Detention
Article 63(1) of the Immigration Control Act states that a person who has received a deportation order may be held in a detention facility “until deportation is possible” if immediate removal is not feasible, for example, because the person has no passport or no transport has been arranged. Because of this single provision, the following situations have recurred:
- No upper limit on detention. Documented cases exist of refugee applicants being held for more than four years.
- No necessity review. No one is required to assess whether detention is actually needed.
- The administrative authority decides everything. Both the decision to detain and how long to detain are made solely by the agency carrying out the deportation.
- Detention orders are attached automatically. In practice, once a deportation order is issued, a detention order follows without any separate consideration.
The Paradox: the Most Vulnerable Are Detained Longest
Asylum seekers who face serious danger if returned to their home country, and migrant workers who have ongoing legal proceedings in Korea, such as unpaid-wage claims, often end up detained for even longer under the current law. The current law does not require any consideration of:
- Whether the person has an illness or disability
- Whether the person is pregnant
- Whether the person has dependants in Korea
- Whether refugee review or rights-remedy proceedings are under way
Real Cases of Harm
- Asylum seekers subjected to solitary confinement and stress positions (the so-called “shrimp torture”).
- Children held in the same room as adult men.
- Most recently, a three-year-old child was detained for 19 days in a room with no windows alongside adult men.
The Constitutional Court’s Decision
On 23 March 2023 the Constitutional Court of Korea ruled that Article 63(1) of the Immigration Control Act violates the principle of proportionality and the principle of due process, thereby infringing detainees’ right to personal liberty. The Court issued a “constitutional non-conformity” ruling and directed that the provision continue to apply until amended legislation is enacted by 31 May 2025.
This was the third constitutional challenge to the provision. In the second challenge, a majority of the justices voted to strike the provision down, but the decision fell short of the six-justice threshold required for a ruling of unconstitutionality, so the provision was upheld and the matter was sent back to the National Assembly. When the National Assembly delayed action, Suwon District Court referred the question to the Constitutional Court again, giving it a third opportunity, and this time the ruling of constitutional non-conformity was finally issued.
The Constitutional Court noted that “no control procedure by a neutral body independent of the enforcement agency exists at the stage of initiating or extending detention,” and identified as an additional ground for unconstitutionality the fact that “no procedural opportunity for the affected person to submit their views exists before a detention order is issued.”
What the Proposed Amendment Contains
The amendment put forward by Representative Park Ju-min includes at minimum the following safeguards.
| Proposed change | Current situation |
|---|---|
| Detention permitted only as a last resort | Detention order automatically attached to a deportation order |
| Maximum time limit on detention | No time limit |
| Mandatory consideration of vulnerability | No obligation to consider vulnerability |
| Right to appeal to a court | No court review |
| Court review required for any extension beyond 20 days | No court review |
International Standards and Comparative Practice
The United Nations and the international community have long recommended that Korea reform its immigration detention system.
- UN Human Rights Committee (2015): Recommended that Korea limit the duration of immigration detention and ensure that detention is used only as a last resort.
- UN Committee on the Elimination of Racial Discrimination (2019): Recommended that the lawfulness of detention be reviewed periodically by an independent body, that non-custodial alternatives be prioritised, and that the detention of children and minors be avoided.
- UN Committee on the Rights of the Child (2019): Stated that detention of children on immigration grounds can never be justified and called for the prompt and complete cessation of child detention.
Maximum Detention Periods in Other Countries
The National Human Rights Commission of Korea (NHRCK) expressed the expectation, in the wake of the constitutional ruling, that the National Assembly would refer to examples such as Taiwan, which set a 100-day cap on immigration detention following its own constitutional ruling, and Israel, which set a 90-day cap following a similar decision, when deciding on an appropriate maximum period.
| Country / Region | Maximum detention period |
|---|---|
| European Union member states | Up to 6 months initially, extendable to a maximum of 12 months |
| France | 90 days |
| Taiwan | 100 days |
| South Africa | 120 days |
| Korea (current law) | No limit |
What Needs to Happen Now
Although the Constitutional Court set 31 May 2025 as the deadline for amendment, the provision continues to apply until that amendment is passed. As a result, arbitrary detention has not stopped even after the constitutional non-conformity ruling.
The National Assembly and civil society are together calling for two things:
- Swift parliamentary debate and passage of the amendment bill: Unconstitutional detention must be ended as soon as possible.
- A complete ban on the detention of children: No child should ever be detained on immigration grounds, under any circumstances.
If This Situation Affects You
If you have received a deportation order or a detention order, please do not try to handle it alone. The following organisations can help. For the most up-to-date information on figures, deadlines, and procedures, please check directly with the Immigration Contact Center (1345) or your local Korea Immigration Service office.
- Immigration Contact Center: Call 1345 (available 24 hours a day, in multiple languages)
- KPIL (Korean Public Interest Lawyers Group): www.kpil.org
- MAP (Migration to Asia Peace) Refugee News: Covers news on refugee and migrant issues, including this one.