South Korea Re-Entry Bans for Foreign Nationals: An Overview
I. The Big Picture
1. Introduction — The Government’s Discretion over the Entry and Re-entry of Foreigners
Immigration administration is a state administrative function that seeks to promote the interests and security of the nation by appropriately controlling and adjusting the entry and departure of nationals and foreigners and the stay of foreigners; in particular, because matters relating to the entry and departure of foreigners are essential to the performance of the functions of a sovereign state, they must be strictly managed (Incheon District Court, July 4, 2023, 2022gudan52543, and many others).
Under international law, too, whether to permit a foreigner’s entry is a matter within the free discretion of the relevant state, and each government may freely prohibit or restrict the entry of foreigners on the basis of its territorial sovereignty. Moreover, even a foreigner who previously resided in the country may have re-entry refused. Because no freedom of entry is recognized for a foreigner, even a foreigner who has once entered is not automatically granted the right to stay in Korea, and where the foreigner departs temporarily and re-enters, this too is treated the same as a new entry.
2. Types of Re-entry Ban
Cases in which a foreigner’s re-entry is barred can be broadly divided into three types: (1) an entry-ban decision by the Minister of Justice; (2) a statutory entry ban pursuant to a forced-removal order; and (3) an internal administrative entry-regulation measure following a departure order.
A. An entry-ban decision by the Minister of Justice (Immigration Act, Article 11)
1) Basis and grounds
Article 11(1) of the Immigration Act provides that the Minister of Justice may bar the entry of a foreigner falling under any of the following subparagraphs.
| Subpara. | Ground |
|---|---|
| 1 | A person with an infectious disease, a drug addict, or another person recognized as likely to cause harm to public health |
| 2 | A person who seeks to enter while unlawfully carrying firearms, swords, explosives, and the like |
| 3 | A person for whom there are substantial grounds to recognize a concern that he may engage in conduct harming the interests of the Republic of Korea or public safety |
| 4 | A person for whom there are substantial grounds to recognize a concern that he may engage in conduct harming the economic or social order, or good morals |
| 5 | A person with a mental disorder who lacks discernment and has no one to assist his stay activities, a person without the ability to bear the costs of stay, and the like |
| 6 | A person for whom 5 years have not passed since he departed after receiving a forced-removal order |
| 7 | A person involved in massacres or abuses during the Japanese colonial period |
| 8 | A person equivalent to those in subparagraphs 1 through 7 whom the Minister of Justice recognizes as unsuitable for entry |
2) The character of the exercise of discretion
The entry-ban grounds in subparagraphs 3 and 4 are framed in indeterminate concepts—“a person for whom there are substantial grounds to recognize a concern that he may engage in conduct harming the interests of the Republic of Korea or public safety” and “a person for whom there are substantial grounds to recognize a concern that he may engage in conduct harming the economic or social order, or good morals”—and whether a person falls within those requirements belongs to the domain of the administrative agency’s discretionary judgment. Accordingly, that discretionary judgment must be broadly respected, absent circumstances such as its content markedly lacking rationality or clearly running counter to the principles of equity or proportionality (Seoul High Court, Oct. 23, 2024, 2024nu47342).
3) The question of disposition status — mere entry into the internal network does not constitute a disposition
Even where the Minister of Justice makes an entry-ban decision, if it goes no further than entering the information into the internal network, the “Immigration Control Information System,” and is not notified to the person concerned, the agency’s intent has not been expressed externally by an official method, so it does not constitute a “disposition” subject to an appeal litigation (Supreme Court, July 11, 2019, 2017du38874).
Likewise, even if the “content of violation” field of a departure order or an immigration-offense screening decision notice records that “the entry-ban period is adjusted to 3 years,” this is no more than preliminary, internal processing in order to take an entry-ban measure upon a future re-entry request, and cannot be regarded as a disposition subject to an appeal litigation (Busan District Court, May 30, 2024, 2023guhap24075; Seoul Administrative Court, July 12, 2023, 2022gudan73195).
B. A statutory entry ban pursuant to a forced-removal order (Immigration Act, Article 11(1), subparagraph 6)
A person for whom 5 years have not passed since he departed after receiving a forced-removal order is, as a matter of law, automatically subject to an entry ban (Immigration Act, Article 11(1), subparagraph 6). This is a bar on entry by the statutory provision itself, without a separate discretionary decision by the Minister of Justice; unlike the case of a departure order, because there is such an express provision, a foreigner who has departed after receiving a forced-removal order is barred from re-entry at the source for 5 years (Seoul Administrative Court, Jan. 9, 2025, 2024gudan66955; Suwon District Court, Apr. 17, 2024, 2023gudan1679).
C. An internal administrative entry-regulation measure following a departure order
For a foreigner who has received a departure order, there is no statutory entry-ban provision such as Article 11(1), subparagraph 6 of the Immigration Act. That said, under the Ministry of Justice’s “Guidelines on the Handling of Entry-Regulation Affairs, etc.,” an internal administrative measure is taken of entering and managing an entry-regulation period in the Immigration Control Information System. Such an entry-regulation entry is no more than preliminary, internal processing prepared for the purpose of judging whether an appropriate entry-ban measure under the relevant statutes should be taken; an entry ban is not effected immediately by such a measure, nor is an entry-ban disposition compelled by it (Suwon District Court, Apr. 17, 2024, 2023gudan1679).
D. The relationship with the re-entry permit system
Under Article 30 of the Immigration Act, where a foreigner who has completed alien registration, or is exempt from it, departs within the period of stay and seeks to re-enter, the foreigner must obtain a re-entry permit from the Minister of Justice (Immigration Act, Article 30(1)). The re-entry permit period is set within a range not exceeding the permitted period of stay (Enforcement Rules of the Immigration Act, Article 39-7(3)), and where the person cannot re-enter within the permit period for an unavoidable reason, the person must obtain permission to extend the re-entry permit period before the period expires (Immigration Act, Article 30(3)). The extension of the re-entry permit period may be set within 3 months from the expiry date of the re-entry permit period, and may not exceed the permitted period of stay (Enforcement Rules of the Immigration Act, Article 39-8(2)).
Departing within the period of stay and re-entering within that period is recognized as temporary overseas travel and is in principle guaranteed as the freedom of residence and movement; however, where continued stay cannot be recognized owing to the reasons for departure or a change of circumstances, it is not guaranteed as the freedom of residence and movement.
3. Recent Key Precedents
A. Denial of disposition status to an entry-regulation measure following a departure order
Busan District Court, May 30, 2024, 2023guhap24075. Although the “content of violation” field of an immigration-offense screening decision notice recorded that “the entry-ban period for the plaintiff is adjusted to 3 years,” the court held that this could not be regarded as a disposition subject to an appeal litigation. As grounds, it cited: (1) that the defendant’s official seal was not affixed to the notice; and (2) that the departure order itself recorded no content on an entry ban, and no separate entry-ban disposition document had been served. Accordingly, the part seeking revocation of the entry-ban disposition was dismissed.
B. A minor criminal record and the lawfulness of a departure order
Seoul High Court, Oct. 23, 2024, 2024nu47342. The plaintiff argued that it is improper to recognize the entry-ban grounds of Article 11(1), subparagraphs 3 and 4 of the Immigration Act even for a foreigner with a minor criminal record. The court, however, held that “even if the offenses the plaintiff committed are relatively minor offenses not amounting to serious crimes, it cannot be said, on that circumstance alone, that the entry-ban grounds of Article 11(1), subparagraphs 3 and 4 of the Immigration Act are not recognized for the plaintiff,” and dismissed the plaintiff’s appeal.
C. Drunk driving and use of a forged international driving permit, and a departure order
Suwon High Court, Aug. 20, 2025, 2024nu16472. This case contested the lawfulness of a departure order against a foreigner who, after being caught for drunk driving with a blood-alcohol concentration of 0.172%, used a forged international driving permit. The court held that “even if, as the plaintiff argues, the result arises that the plaintiff can no longer re-enter the Republic of Korea after departing pursuant to the disposition at issue, this is merely a result of the plaintiff’s unlawful conduct, and the plaintiff’s disadvantage cannot be regarded as greater than the public interest—the protection of the Republic of Korea’s public safety and social order, and the like—sought to be achieved through the disposition,” and dismissed the plaintiff’s appeal.
D. Recognition of disposition status for an entry-refusal disposition, and the interest in suit
Incheon District Court, Oct. 8, 2024, 2024gudan51247. This case involved an Uzbek-national foreigner who, even after voluntarily departing, sought revocation of an entry-refusal disposition and a disposition canceling stay permission. The court recognized the interest in suit, holding that “the plaintiff has a disadvantage of being subject to a future entry-ban disposition and the like owing to the existence of each disposition at issue, and so has a legal interest in seeking revocation of each disposition at issue.” On the merits, however, it judged the dispositions lawful and dismissed the plaintiff’s claim.
E. The interest in suit in an action to revoke a forced-removal order
Seoul Administrative Court, Jan. 9, 2025, 2024gudan66955. The defendant argued that, even if the forced-removal order were revoked, the plaintiff could not stay in the Republic of Korea since the period of stay had already passed, so there was no interest in suit. The court, however, held that under Article 11(1), subparagraph 6 of the Immigration Act a person for whom 5 years have not passed since departing after a forced-removal order may be barred from entry at the source, so the plaintiff has a legal interest in seeking revocation of the forced-removal order.
F. Denial of a change of residence status after loss of permanent residence
Suwon District Court, June 26, 2024, 2023gudan5749. This case involved a foreigner who, holding permanent residence (F-5) status, lost that status by failing to re-enter by the expiry date of the re-entry permit, and then did not enter even within 6 months of exceeding the re-entry permit or exemption period. The court found that the person did not satisfy the requirements recognized as an unavoidable reason under the relevant guidelines (entry within 6 months owing to force majeure such as an infectious disease or natural disaster, or a sudden illness or accident), and judged the disposition denying the change of residence status lawful.
4. Summary
| Type | Basis | Period | Disposition status |
|---|---|---|---|
| Entry-ban decision by the Minister of Justice | Immigration Act, Article 11(1) | Determined at discretion | A disposition arises upon external expression |
| Statutory entry ban pursuant to a forced-removal order | Immigration Act, Article 11(1), subparagraph 6 | 5 years after departure | Automatically barred by statute |
| Internal entry regulation following a departure order | Ministry of Justice guidelines | Determined per the guidelines | Disposition status denied (internal processing) |
| Denial of a re-entry permit | Immigration Act, Article 30 | Within the period of stay | A disposition arises |
Because the legal character and the means of challenge for a foreigner’s re-entry ban differ according to its type, it is important to examine closely, in particular, whether disposition status is recognized and whether the interest in suit exists.
II. Entry-Ban Decisions on a Re-entry Application After 5 Years Have Passed Since Forced Removal
1. Framing the Issue
Article 11(1), subparagraph 6 of the Immigration Act provides that “a person for whom 5 years have not passed since he departed after receiving a forced-removal order” is subject to an entry ban (Immigration Act, Article 11(1), subparagraph 6). Because this provision specifies a period of 5 years, the entry-ban ground under that subparagraph lapses once 5 years have passed. This does not, however, mean that re-entry is thereby guaranteed—because the Minister of Justice may still make a discretionary entry-ban decision on the basis of the other subparagraphs of Article 11(1).
2. Cases in Which an Entry Ban Is Still Possible After 5 Years Have Passed
A. Article 11(1), subparagraph 3 of the Immigration Act — concern of harm to public safety or the national interest
Where a person falls within “a person for whom there are substantial grounds to recognize a concern that he may engage in conduct harming the interests of the Republic of Korea or public safety,” the Minister of Justice may bar entry (Immigration Act, Article 11(1), subparagraph 3). The content of the offense that gave rise to the forced removal, a record of unlawful overstay, a record of using a false-name passport, and the like serve as material for judging this ground.
B. Article 11(1), subparagraph 4 of the Immigration Act — concern of harm to the social order or good morals
An entry ban is also possible where a person falls within “a person for whom there are substantial grounds to recognize a concern that he may engage in conduct harming the economic or social order, or good morals” (Immigration Act, Article 11(1), subparagraph 4). A record of drunk driving, sexual offenses, drug-related offenses, and the like serves as a basis for judging this ground.
The court has recognized the subparagraph 4 ground for a foreigner with a record of drunk driving, finding that he “makes light of the legal order of the Republic of Korea and is likely to engage in conduct that may harm the interests of the Republic of Korea, public safety, the social order, and the like” (Ulsan District Court, Nov. 18, 2021, 2021guhap5059).
C. Article 11(1), subparagraph 8 of the Immigration Act — comprehensive entry ban
An entry ban is also possible where a person falls within “a person equivalent to those provided in subparagraphs 1 through 7 whom the Minister of Justice recognizes as unsuitable for entry” (Immigration Act, Article 11(1), subparagraph 8). Under the “Guidelines on the Handling of Entry-Regulation Affairs, etc.” prepared by the Minister of Justice, a person who has committed an offense under the Act on the Control of Narcotics, etc. and received a disposition of suspension of indictment or heavier is to be permanently barred from entry, which is based on subparagraph 8 (Seoul High Court, Mar. 23, 2016, 2015nu57279; Seoul Administrative Court, Apr. 13, 2018, 2017guhap76074).
D. Article 11(2) of the Immigration Act — entry ban by reciprocity
Where the home country of a foreigner seeking to enter refuses the entry of a national of the Republic of Korea for a ground other than those in the subparagraphs of paragraph 1, the Minister of Justice may refuse that foreigner’s entry on the same ground (Immigration Act, Article 11(2)).
3. The Relationship Between the Statutory Entry Ban and the Discretionary Entry Ban
A. Statutory entry ban (Article 11(1), subparagraph 6)
The entry ban under subparagraph 6 applies where 5 years have not passed since departure after receiving a forced-removal order; the entry-ban ground arises by the statutory provision itself. Once this period passes, the entry-ban ground under subparagraph 6 lapses as a matter of course.
B. Discretionary entry ban (Article 11(1), subparagraphs 3, 4, 8, etc.)
An entry ban under subparagraphs 3, 4, and 8 is one made by the discretionary judgment of the Minister of Justice, and may be applied independently, regardless of the passage of the 5-year period. This discretionary judgment must be broadly respected, absent circumstances such as its content markedly lacking rationality or clearly running counter to the principles of equity or proportionality (Seoul High Court, Oct. 23, 2024, 2024nu47342).
C. The relationship between the two — coexisting, independent application
The court has held that even where, in issuing a forced-removal order, an agency also makes a “decision barring entry for 5 years after forced removal” on the basis of Article 11(1), subparagraphs 3 and 4 of the Immigration Act, this is no more than advance notice that an entry-ban disposition may be issued upon a re-entry request, and is not a concrete disposition (Seoul High Court, May 22, 2020, 2019nu62217). That is, a discretionary entry ban under subparagraphs 3 and 4 is not finalized at the time of the forced removal, but is decided by the Minister of Justice exercising discretion separately at the time of the actual re-entry application.
Accordingly, even where 5 years pass and the statutory entry-ban ground under subparagraph 6 lapses, the Minister of Justice may, at the time of the re-entry application, newly examine grounds such as subparagraphs 3, 4, and 8 and make a discretionary entry-ban decision. These two types of entry ban apply independently of each other, and even where one lapses, the possibility of applying the other must be judged separately.
4. The Limits of the Exercise of Discretion — the Proportionality Principle and the Prohibition on Non-Exercise of Discretion
Even when making a discretionary entry-ban decision, the Minister of Justice must observe the principle of proportionality. In particular, the following must be considered comprehensively: (1) the content and gravity of the violation that gave rise to the forced removal; (2) the duration of stay in Korea and whether a base of life has been formed; (3) humanitarian circumstances such as family relationships; and (4) the likelihood of reoffending.
Moreover, where the Minister of Justice makes an entry-ban decision under the mistaken belief that he has no discretion, or without exercising any discretion at all, this is a non-exercise of discretion that itself amounts to an exceeding or abuse of discretion, making the disposition unlawful (Supreme Court, July 11, 2019, 2017du38874).
5. Summary
| Category | Basis | Period | Character |
|---|---|---|---|
| Statutory entry ban | Immigration Act, Article 11(1), subparagraph 6 | 5 years after departure | Arises automatically by statute; lapses upon passage of the period |
| Discretionary entry ban | Immigration Act, Article 11(1), subparagraphs 3, 4, 8, etc. | Determined at discretion | May be applied independently even after 5 years pass |
In conclusion, once 5 years pass after forced removal, the statutory entry-ban ground under subparagraph 6 lapses, but the Minister of Justice may make a discretionary entry-ban decision on the basis of subparagraphs 3, 4, 8, and the like. Even in this case, however, the principle of proportionality must be observed and discretion must be substantively exercised, and the decision must be made through a fresh examination at the time of the re-entry application (Immigration Act, Article 11(1)).
III. Applying the Proportionality Principle to a Discretionary Entry Ban After 5 Years, by the Severity of the Offense Underlying the Forced Removal
1. Framing the Issue
Once 5 years pass after forced removal, the statutory entry-ban ground under Article 11(1), subparagraph 6 of the Immigration Act lapses, but the Minister of Justice may make a discretionary entry-ban decision on the basis of subparagraphs 3, 4, 8, and the like of the same paragraph. The question here is whether there is a difference—in the intensity with which the proportionality principle applies and in the courts’ manner of review—between cases where the offense underlying the forced removal was minor and cases where it was a serious crime.
2. The Legal Character of a Discretionary Entry-Ban Decision, and the Standard of Review
A. Recognition of broad discretion
Immigration administration is a state administrative function that seeks to promote the interests and security of the nation by appropriately controlling and adjusting the entry and departure of nationals and foreigners and the stay of foreigners; in particular, because matters relating to the entry and departure of foreigners are essential to the performance of the functions of a sovereign state, they must be strictly managed. Accordingly, the Minister of Justice has broad discretion as to whether to make an entry-ban decision.
Article 11(1), subparagraphs 3 and 4 of the Immigration Act frame the entry-ban grounds in indeterminate concepts—“a person for whom there are substantial grounds to recognize a concern that he may engage in conduct harming the interests of the Republic of Korea or public safety” and “a person for whom there are substantial grounds to recognize a concern that he may engage in conduct harming the economic or social order, or good morals”—and whether a person falls within those requirements belongs to the domain of the administrative agency’s discretionary judgment. Accordingly, that discretionary judgment must be broadly respected, absent circumstances such as its content markedly lacking rationality or clearly running counter to the principles of equity or proportionality (Seoul High Court, Oct. 23, 2024, 2024nu47342).
B. The standard for reviewing an exceeding or abuse of discretion
Even for a disposition within the agency’s discretion, where the limits of discretion are exceeded or there is an abuse of it, the court may revoke it (Administrative Litigation Act, Article 27). Moreover, when making a discretionary disposition, the agency must properly balance the relevant interests and must not exceed the bounds of its discretion (Framework Act on Administration, Article 21).
The court reviews whether an entry-ban decision: (1) has a ground for the disposition; (2) observed the principle of proportionality (the principle against excessive restriction); and (3) substantively exercised discretion. Where a sanction disposition is excessive relative to the content of the breach of duty and has, by socially accepted standards, markedly lost its appropriateness, it amounts to an exceeding or abuse of discretion and is unlawful (Ulsan District Court, June 28, 2022, 2021guhap8935).
3. The Case of a Minor Offense (e.g., Minor Unlawful Overstay)
A. A minor offense can still be a ground for an entry ban
The court has held that even if the offense underlying the forced removal is a relatively minor offense not amounting to a serious crime, it cannot be said, on that circumstance alone, that the entry-ban grounds of Article 11(1), subparagraphs 3 and 4 of the Immigration Act are not recognized (Seoul High Court, Oct. 23, 2024, 2024nu47342).
B. The substantive operation of proportionality review
Where the degree of the violation is minor and not repeated, as with simple unlawful overstay, maintaining an entry ban even after 5 years pass may run counter to the principle of proportionality. By contrast, where even a minor offense was committed repeatedly, or was committed again after submitting a written pledge to abide by the law, the entry-ban ground may be recognized (Seoul High Court, Oct. 23, 2024, 2024nu47342).
C. The relationship with the Ministry of Justice’s internal guidelines
The Ministry of Justice’s “Guidelines on the Handling of Entry-Regulation Affairs, etc.” apply differentiated entry-ban periods according to the amount of the fine and the like. For example, for a fine of KRW 5 million or more but less than KRW 10 million, a 1-year entry ban is set (Gwangju High Court (Jeonju), May 24, 2023, 2022nu1604), and after this period passes it is difficult to maintain an additional entry ban on the basis of the minor offense. The court, too, emphasized the temporary nature of an entry ban for a minor offense, holding that “even if the plaintiff departs pursuant to the departure order at issue, his qualification to stay in the Republic of Korea is not permanently deprived, and after the designated entry-restriction period (1 year) passes he may enter the Republic of Korea by again acquiring a lawful residence status and meeting the qualifications and requirements necessary for entry” (Gwangju High Court (Jeonju), May 24, 2023, 2022nu1604).
4. The Case of a Serious Crime (e.g., Sexual Offenses, Drug-Related Crimes)
A. The need for strengthened protection of the public interest
In the case of serious crimes such as sexual offenses, drug-related crimes, and voice phishing, the likelihood that a discretionary entry-ban decision is justified even after 5 years pass is markedly higher.
A drug-related crime is, by its nature, a crime of great contagiousness and social harmfulness; moreover, absent special circumstances such as obtaining approval as prescribed by the Act on the Control of Narcotics, etc., all acts such as the possession, transport, and provision of narcotics are prohibited and are subject to criminal punishment if violated—so the entry-ban ground is strongly recognized (Daejeon District Court, Aug. 23, 2018, 2017gudan101166).
The offense of indecent act by force is a crime that causes sexual displeasure and revulsion and infringes the victim’s sexual self-determination; in light of its statutory penalty (imprisonment of up to 10 years or a fine of up to KRW 15 million), it can by no means be regarded as a minor offense, and it falls within the sexual-violence crimes that Article 46(1), subparagraph 15 of the Immigration Act and Article 54-2, subparagraph 1 and Article 54 of its Enforcement Rules expressly designate as grounds for forced removal (Seoul Administrative Court, Feb. 1, 2024, 2023gudan67814).
B. Long-term or permanent entry bans under the Ministry of Justice’s internal guidelines
The Ministry of Justice’s “Guidelines on the Handling of Entry-Regulation Affairs, etc.” provide that a person who has committed an offense under the Act on the Control of Narcotics, etc. and received a disposition of suspension of indictment or heavier is to be permanently barred from entry (Seoul High Court, Mar. 23, 2016, 2015nu57279; Seoul Administrative Court, Apr. 13, 2018, 2017guhap76074). They also set a 10-year entry ban for a serious offender who received a sentence of imprisonment with or without labor of less than 5 years (Busan District Court, Feb. 9, 2023, 2022guhap23730).
Such guidelines, as discretionary rules, must be respected unless they are found not to conform to the Constitution or statutes, or to be objectively unreasonable and thus an abuse of discretion (Seoul Administrative Court, Aug. 30, 2024, 2024gudan62182).
C. Serious economic crimes such as voice phishing
For a foreigner who participated as a cash-collector in a voice-phishing crime and defrauded victims of a large sum, the court held that he fell within “a person for whom there are substantial grounds to recognize a concern that he may engage in conduct harming the public safety, social order, and the like of the Republic of Korea,” and judged the forced-removal order lawful (Seoul Administrative Court, Aug. 22, 2024, 2023gudan76283). In the case of such serious economic crimes, a discretionary entry-ban decision is likely to be justified even after 5 years pass.
5. The Difference in Applying the Proportionality Principle — A Comprehensive Comparison
| Category | Minor offense (e.g., simple unlawful overstay) | Serious crime (e.g., sexual offense, drugs) |
|---|---|---|
| Whether an entry-ban ground is recognized | Can be recognized, but proportionality review is strict | Strongly recognized |
| Ban period under internal guidelines | Short (around 1 year) | Long (10 years) or permanent |
| Possibility of additional ban after 5 years | Low (difficult without repetition or reoffending) | High (long-term or permanent ban possible under guidelines) |
| Weight given to humanitarian circumstances | Relatively high | Relatively low |
| Intensity of the court’s review | Substantive proportionality review | Discretion broadly respected |
| Assessment of reoffending likelihood | If low, hard to maintain the ban | Assessed as high by the nature of the crime |
6. The Specific Manner of the Court’s Review
A. Reviewing the existence of a ground for the disposition
The court first reviews whether a ground for an entry ban under Article 11(1), subparagraphs 3 and 4 of the Immigration Act actually exists. Here, the content of the offense underlying the forced removal, a record of unlawful overstay, a record of using a false-name passport, and the like serve as material for the judgment.
B. Proportionality review — balancing the public and private interests
The court balances (1) the public interest the disposition seeks to achieve (maintaining immigration order, public safety, etc.) against (2) the disadvantage the foreigner suffers from the disposition (loss of the base of life in Korea, severance of family relationships, etc.). It is also considered that, even if the person departs pursuant to the disposition at issue, he is not permanently unable to enter the Republic of Korea, and that once the entry-regulation period passes he may be granted a lawful residence status again and enter the Republic of Korea (Suwon District Court, Apr. 21, 2023, 2021gudan7994).
C. Reviewing whether discretion was substantively exercised
The court also reviews whether the Minister of Justice substantively exercised discretion. Where the Minister of Justice made an entry-ban decision solely on the fact of a record of forced removal and did not balance the public and private interests at all, it is unlawful as a non-exercise of discretion (Daejeon District Court, June 10, 2021, 2020gudan416).
D. Application of a relaxed standard of review
Because matters relating to the entry of foreigners are essential to the performance of the functions of a sovereign state and lie in a field of broad policy discretion, a relaxed standard of review must be applied in judging whether the exercise of public power in this domain is unconstitutional or unlawful (Incheon District Court, Jan. 12, 2023, 2022guhap54966). That said, in the case of a foreigner who has already entered and formed a base of life in the country, the breadth of discretion can be regarded as narrower than for a new entrant (Gwangju High Court (Jeonju), July 24, 2024, 2024nu87).
7. Conclusion
In a discretionary entry-ban decision after 5 years have passed since forced removal, the intensity with which the proportionality principle applies differs substantively according to the severity of the offense underlying the forced removal. In the case of a minor offense, the court is likely to apply the principle of proportionality strictly and recognize the unlawfulness of the entry-ban decision; by contrast, in the case of a serious crime such as a sexual offense or a drug-related crime, the Minister of Justice’s discretion is broadly respected, and a long-term or permanent entry-ban decision may be justified even after 5 years pass. In either case, however, the Minister of Justice must exercise discretion by substantively balancing the public and private interests, and where this is not exercised at all, the disposition is unlawful as a non-exercise of discretion (Framework Act on Administration, Article 21; Administrative Litigation Act, Article 27).
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