In the case where Party A, who entered the Republic of Korea upon obtaining non-professional employment (E-9) qualification for Vietnam, filed an application for a change of sojourn status with Party B, who was married naturalization from Vietnam, and filed an application for a change of sojourn status as a citizen’s spouse (F-6-1) even if the period of sojourn has expired for at least seven years, but the head of the competent immigration office rejected the application and notifies the voluntary departure on the ground of “the illegal stay for less than three years and seven years and four months after the spouse acquired the spouse’s nationality,” the case holding that the disposition does not constitute a case of deviation or abuse of discretionary authority.

In a case where Party A, who entered the Republic of Korea with non-professional employment (E-9) for at least seven years after the expiration of the period of stay, filed an application for a change of status for illegal stay with Party B, and filed an application for a change of status for the qualification of spouse (F-6-1) of the citizen, but the head of the competent immigration control office rejected the application for a change of status for the reason of “an illegal stay for less than three years, seven years and four months after the spouse acquired the spouse’s nationality,” and notified Party B of voluntary departure, the case held that restricting the invitation of other foreigners within three years after the acquisition of the nationality of the married naturalization to the Republic of Korea by preventing the naturalization from being divorced within a short time after acquiring the nationality of the Republic of Korea on the ground of marriage with the citizen and preventing the invitation of other foreigners to the marriage immigrants, and that in a case where a long period of illegal stay for the Republic of Korea, a foreigner who has acquired the nationality of the Republic of Korea due to marriage or was pregnant with a foreigner by marriage for an extended period of time, it would not be subject to the aforementioned change of discretionary authority.

Articles 10(1), 17(1), 24(1), and 25 of the Immigration Act; Article 9-5(1) of the Enforcement Rule of the Immigration Control Act; Article 9-5(1) of the Enforcement Rule of the Immigration Control Act

[Judgment of the court below]

Head of Gu Office of Daegu Immigration Office

Daegu District Court Decision 2015Guhap23566 Decided January 27, 2016

July 8, 2016

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's non-permission disposition against the plaintiff, such as extension of sojourn period as of August 28, 2015, and the disposition of departure order as of August 31, 2015 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. The plaintiff, on April 19, 2007, entered the Republic of Korea with a non-professional employment (E-9) qualification as Vietnam, and the period of sojourn expired on April 19, 2008.

B. On April 1, 2009, the Nonparty married with a Korean national male, and naturalization on December 3, 2013, but filed a report of divorce on October 28, 2014.

C. On July 27, 2015, the Plaintiff reported the marriage with the Nonparty, and on August 27, 2015, filed an application with the Defendant for the change of status of stay in the capacity of a citizen’s spouse (F-6-1).

D. On August 28, 2015, the Defendant notified the Plaintiff of the return of the said application on the ground of “illegal stay for less than three years, less than seven years, and more than seven years and four months after the acquisition of the spouse’s nationality,” and notified the Plaintiff on the 31st of the same month, pursuant to Articles 17(1), 24(1), 46(1)8, and 68(1)1 of the Immigration Control Act, of the voluntary departure by September 30, 2015 (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence Nos. 1, 3 and 4 (including each number), non-party witness of the first instance trial, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The requirements for “three years after the acquisition of the spouse’s nationality” under the Immigration Control Act, which are the criteria for the examination of the status of stay for a national, ought to be applied separately to cases where a new status of stay is granted or where a status of stay is extended. If the Plaintiff and the Nonparty are married to a normal marriage, and the Nonparty given birth to a child at early 2016, and if the three-year standard is strictly applied, the Plaintiff must depart from Vietnam, and the Plaintiff is unable to obtain a visa for entry into Korea until December 3, 2016, thereby creating a risk of failure in the family due to a prolonged separation. The Defendant’s instant disposition, which did not fully consider such circumstances, was unlawful as it deviates from and abused discretion.

B. Relevant statutes

Attached Form "Related Acts and subordinate statutes" shall be as stated.

C. Determination

1) Relevant regulations and legal principles

A) Articles 10(1), 17(1), 24(1), and 25 of the Immigration Control Act provide that any foreigner who intends to enter the Republic of Korea shall obtain the status of sojourn prescribed by Presidential Decree, and any foreigner who enters the Republic of Korea may stay in the Republic of Korea within the scope of his/her status of sojourn and the period of sojourn. If a foreigner who stays in the Republic of Korea intends to engage in an activity that differs from his/her status of sojourn, the permission to change his/her status of sojourn shall be obtained from the Minister of Justice in advance. If the foreigner intends to continue his/her status of sojourn in excess of the period of sojourn, the permission to extend the period of sojourn shall be obtained from the Minister of Justice before the period of sojourn expires, as prescribed by Presidential Decree. Thus, in principle, if a foreigner who enters the Republic of Korea needs to continue his/her status of sojourn even after

B) Since the above change of status of stay has the nature of a sort of permanent disposition that grants the applicant the right to engage in activities that correspond to the original status of stay and other status of stay, the permitting authority has the discretion to decide whether to grant permission in consideration of the applicant’s eligibility, purpose of stay, impact on public interest, etc. (see Supreme Court Decision 2015Du48846, Jul. 14, 2016, etc.).

C) Meanwhile, a foreigner staying in the Republic of Korea obtains permission to change his/her status of stay to "spouse of a national" is substantially the same as that of a foreigner married to a national of the Republic of Korea who has obtained a visa for the purpose of marriage. Thus, the examination criteria for the issuance of the visa can also be applied in cases where a decision to change the status of stay is

(1) The head of a diplomatic mission abroad in receipt of an application for a visa for the purpose of marriage stay may examine and confirm the requirements, such as the following: (a) a foreigner who applied for a visa and his/her invitation to obtain a visa in order to determine the authenticity of marriage and the possibility of normal marriage life; (b) a foreigner who applied for a visa and his/her invitation to obtain a visa; (c) whether a person has been married under the laws and regulations of a State Party (Article 9-5(1)1 of the Enforcement Rule of the Immigration Control Act) (Article 9-5(1)); (d) a person who has invited another spouse within the last five years (Article 3); (d) whether the first person has invited another spouse during the last five years (Article 4); (e) whether the first person satisfies certain income requirements (Article 5); (e) whether the first person is able to obtain a normal residential space where the second person can reside along with a father (Article 6); and (e) whether the first person has acquired the nationality of the State (Article 8).

(2) The Defendant’s internal administrative guidelines for marriage immigration visa and sojourn management (hereinafter “instant guidelines”) provide that “if there is a child born between husband and wife, whether the initial applicant has invited another spouse within the last five years, whether the initial applicant satisfies certain income requirements,” and “whether the initial applicant is able to obtain Korean language approval above the basic level,” among the above examination guidelines.

(3) In addition, according to the instant guidelines, the subject of the permission to change the status of stay in the capacity of a spouse of a national is limited to a domestic legal stay. As to the holders of short-term visa, illegal aliens, postponed departure period, and general criminal offenders, etc., in principle, the change of status of stay should be denied, and the entry should be permitted with a visa issued at an overseas diplomatic mission after departure. However, the permission to change the status of stay in the Republic of Korea is exceptionally allowed, “where it is deemed inevitable to change the status of stay in the Republic of Korea due to other humanitarian reasons such as the scheduled pregnancy, childbirth, bringing up of children, etc.” However, the issuance of a visa is not allowed if the invitation of a

2) Specific determination

In full view of the following circumstances revealed by the above facts of recognition and each of the evidence mentioned above, it cannot be seen that the disposition of this case is a case where the disadvantage of the plaintiff et al. is too large compared to the public interest to be achieved thereby, and the disposition is a case where the discretion is exceeded and abused. Thus, the plaintiff's above assertion cannot be accepted.

A) As seen earlier, the Plaintiff continued to engage in illegal stay for at least seven years since the expiration of the domestic period of stay granted at the time of entry, and completed a marriage report with the Nonparty, who was a married naturalization, and applied for permission to change the said status of stay.

B) The immigration control administration is a state administrative action aimed at promoting the national interest and safety by properly controlling and coordinating the entry and departure of foreigners in Korea and foreigners. In particular, matters concerning the stay of foreigners in Korea are essential to carry out the functions as a sovereign state, so it should be strictly controlled. Of them, in the case of the spouse (F-6-1) of a citizen, it is more so that domestic employment and acquisition of nationality are easy compared to other status of sojourn.

C) Restrictions on the invitation of a married naturalization to another foreigner within three years after the acquisition of nationality of the Republic of Korea on the ground of marriage with the citizen by preventing the married naturalization from having divorced within a short time after acquiring the nationality of the Republic of Korea on the ground of marriage with the citizen and from inviting another foreigner as the immigrants, thereby establishing a sound international marriage culture and preventing early dissolution of the multicultural family. The purport of the above system is to prevent the early dissolution of the multicultural family. If a foreigner, like the Plaintiff, who has long-term illegal stay in Korea, grants permission for change of the status of stay regardless of three years after the acquisition of nationality of the spouse on the ground that he/she has married with a person who has acquired the nationality of the Republic of Korea due to naturalization and has given birth or has given birth, the purport of the above system will be eliminated, and there seems to be concerns that the illegal aliens scheduled to be forced to leave may attempt to

D) As seen earlier, the requirement of “three years after the acquisition of nationality of the spouse” does not fall under the requirement of exemption from examination on grounds of the birth of children between husband and wife among the criteria for examination for the issuance of visas for the purpose of marriage stay, and does not fall under the requirement of “an exceptional permission to change the status of stay due to humanitarian reasons such as the planning of pregnancy, childbirth and parenting of children” recognized to illegal aliens, etc.

E) Although the Plaintiff is subject to deportation, the Defendant took measures to postpone entry restrictions to the Plaintiff at the time of the instant disposition, taking into account the fact that the Plaintiff was the spouse of the citizen and applied for permission for change of status of stay after voluntary attendance. It seems sufficiently possible for the Plaintiff to re-entry the Republic of Korea with the status of stay such as short-term visits (C-3) until the requirements for the issuance of visas for marriage stay even

F) As his parents and siblings are living in Vietnam at present, the Nonparty temporarily left Vietnam, along with his children until the Plaintiff re-entrys the Republic of Korea (the Nonparty left Vietnam around January 29, 2011 and around May 10, 2014 during the marriage period with her husband, who is a Korean citizen, and left Korea with her husband and remains in friendly home. The Nonparty’s record of the examination of the Nonparty’s witness), appears to be able to have the Nonparty visit the Republic of Korea and receive assistance necessary for raising their children (the Nonparty’s mother enters the Republic of Korea on or around May 20, 2012 under the pretext of helping the Nonparty adapt to the domestic life, and also resided with the Nonparty until May 10, 2015. The Nonparty’s record of the examination of the witness against the Nonparty).

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the judgment of the court of first instance is revoked, and the plaintiff's claim is dismissed as per Disposition.

[Attachment] Relevant Statutes: omitted

Judge Jeong Jong-sung (Presiding Judge)