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A Protection of Migration and Residence Rights in Situations where Freedom of Movement and Related Rights are Restricted under Immigration Law - Rights to Enter and Exit, Right to Stay, Right not to be Deported -

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2026, 14(2), pp.181~269
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : May 5, 2026
  • Accepted : May 23, 2026
  • Published : May 31, 2026

Jongho Kim 1

1호서대학교

Accredited

ABSTRACT

The right to enter one’s own country and the right to remain/reside are rights under international human rights law and domestic constitutions that apply differently to nationals and foreigners. Everyone has the right to enter their own country, and this right shall not be arbitrarily deprived. Article 12, Paragraph 4 of the International Covenant on Civil and Political Rights (ICCPR) stipulates, “No one shall be arbitrarily deprived of the right to enter his or her own country.” This means that a state may not, without justifiable grounds, prevent a national from returning to his or her own country. There is an interpretation that this includes not only citizens but also long-term residents who have resided in the country for a long time and have a de facto connection with the country. The right of residence is the right to remain within a country after entry. Citizens enjoy freedom of residence and movement within their country and are not subject to restrictions on their stay. Foreigners or compatriots with foreign nationality, in principle, do not have an absolute right to reside in their country and must obtain a visa and residency status in accordance with domestic laws, such as the Immigration Control Act. Permanent residents can remain in Korea without any restrictions on the length of stay, unless there are special circumstances. Foreign nationals who report their domestic residence enjoy the same rights as Korean nationals in real estate transactions and other domestic transactions. Even nationals may be temporarily restricted from entering the country if there are legitimate reasons, such as national security, public safety, public order, or an infectious disease situation like COVID-19. Foreigners must possess a visa appropriate to their purpose of entry (tourism, employment, study, etc.), and overstaying their period of stay or violating the law may result in deportation. In short, while citizens are guaranteed the fundamental right to enter the country (right of return) and the right to reside, foreigners enjoy limited rights based on their country of nationality’s entry permit and residency status. The “right not to be forcibly removed in violation of the principle of proportionality” is a right grounded in the principle of proportionality (principle of prohibition of excess) stipulating that when the state forcibly removes foreigners (by issuing a eviction order), the administrative action must not be excessive to achieve its intended purpose, as stipulated in the Constitution and administrative law of the Republic of Korea. According to Article 37, Paragraph 2 of the Constitution, the freedoms and rights of all citizens (including foreigners) may be restricted only to the minimum extent necessary, and forced removals must also adhere to this principle. For a forced eviction to be lawful, it must meet the following four requirements. Excessive measures that violate these requirements are unlawful (under the principle of proportionality). (a) Legitimacy of purpose: There must be a legitimate purpose, such as preventing illegal stay or maintaining public safety. (b) Appropriateness of means: Forced eviction must be an effective and appropriate means of achieving the purpose. (c) Minimization of infringement (principle of necessity): There must be a reasonable justification for choosing forced eviction over other, lesser measures (e.g., deportation orders, fines). (d) Balance of Legal Interests (Principle of Proportionality): The personal disadvantages suffered by foreigners due to forced deportation must not outweigh the public benefit achieved. The Constitutional Court declared the absence of an upper limit on the detention period unconstitutional. In other words, the Court ruled that Article 63, Paragraph 1 of the Immigration Control Act, which does not set an upper limit on the period of detention for foreigners subject to a deportation order, violates the principle of proportionality (principle of prohibition of excessiveness) and the principle of due process, thereby infringing on personal liberty. Ordering deportation without comprehensive consideration of the circumstances surrounding the illegal stay or violation of residency status, whether intentional, or for humanitarian reasons may constitute an abuse of discretion and a violation of the principle of proportionality. Foreigners who have been unfairly ordered to deport in violation of the principle of proportionality may seek relief through the following procedures. (a) Objection: File an objection to a deportation order with the Minister of Justice; (b) Administrative appeal and administrative litigation: File a lawsuit to cancel a deportation order; (c) Deportation order system: Minimize damages through a ‘departure order’ that orders voluntary departure instead of forced deportation (enforcement). This principle serves as a core criterion that restricts the right of a foreigner to reside, but ensures that the process must not be so harsh as to violate human dignity.

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