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National Human Rights Commission of Korea. / Asia Today DB

Under current law, when extending the detention period for a foreign national, an application can be made for up to three months per extension. However, it was revealed that approximately 99 out of 100 actual extension applications were submitted uniformly for three months. The National Human Rights Commission of Korea viewed this practice as a result of failing to adequately and individually examine the feasibility of repatriation and the necessity of detention for each detained foreigner, and recommended system improvements to the Ministry of Justice.

According to the commission on the 31st, out of 360 applications for approval to extend the detention period of foreign nationals as of August 30 of last year, 355 cases (98.6%) were filed for three months.

The foreigner detention system is designed to place foreign nationals who have received deportation orders in immigration detention centers until their departure. In the past, foreign nationals subject to deportation could be detained until repatriation became possible, meaning there was no separate upper limit on the total detention period. If the detention period exceeded three months, detention could continue every three months thereafter with the approval of the Minister of Justice.

However, the Constitutional Court issued a decision of non-conformity with the Constitution in 2023 regarding the Immigration Control Act provision that did not set an upper limit on the detention period. Accordingly, the revised Immigration Control Act, which took effect in June of last year, restricted the initial detention period to within two months, and allowed the detention period to be extended within a range of every three months with the prior approval of the Alien Detention Committee if repatriation remains difficult thereafter. The total detention period is nine months in principle, and can last up to 20 months if there are statutory grounds, such as applying for refugee status.

The commission considered that the Ministry of Justice's uniform approval of detention periods hardly aligns with the intent of the revised Immigration Control Act, which set an upper limit on detention periods and aimed to detain individuals only for the minimum necessary duration. The purpose is that the provision permitting an extension of up to three months should not be applied to mean that three months of detention is necessary for every individual foreign national.

On the 27th, the commission recommended that the Minister of Justice examine individual circumstances when applying for detention period extensions and determine the actual required period within the three-month range. It also requested measures to guarantee a minimum period of 10 days for detained foreigners to submit their opinions during the extension review.

The commission plans to continuously monitor the operation of the system so that the revised foreigner detention system can function effectively as a mechanism to curb prolonged and arbitrary detention.

                                                                                                            Kim Tae-hoon