From a religious perspective, the first forced eviction in human history can be considered the incident of Adam and Eve being tempted by the snake and being driven out of the Garden of Eden as a result of following the path of sin, which angered God. Meanwhile, although it is a principle to exercise forced eviction against foreigners who violate domestic law, there are cases where it is also carried out against nationals. This is mainly due to political reasons, where nationals are expelled for a certain period of time from a foreign country to remove political opposition or their supporters. This practice can be traced back to the "ostracism" carried out in Athens, Greece, in the 5th century BC. The forced expulsion of Solzhenitsyn, a Nobel laureate in literature, from the former Soviet Union was also an example of forced eviction carried out against nationals for political purposes.
In cases where foreigners can be forced to leave the country, there is a term called "removal," which is used synonymously with deportation but is sometimes used more broadly to include inadmissibility. Deportation is an administrative disposition against foreigners who are not in the national interest, such as violators of the Immigration Control Act, and refers to the strongest administrative disposition of forcibly expelling the foreigner from Korean territory against their will.
Today, countries around the world have designated illegal immigrants, illegal residents, criminals, anti-social individuals, infectious disease patients, drug addicts, individuals who impose a public burden, and individuals who undermine national security, interests, or social order as targets for forced eviction. In Korea, the Immigration Control Act (Article 46) lists the targets of forced eviction, and the following conditions must be met to carry out forced eviction: first, there must be a violation of the Immigration Control Act; second, the process and methods must be strictly followed; and third, forced eviction is only applied to foreigners, not nationals.
According to Article 46 of the Immigration Control Act, the head of a local immigration office in Korea has the authority to deport foreigners who have entered the country illegally without passing through immigration inspection, who have been discovered to have been prohibited from entering after their arrival, who have engaged in political activities prohibited by law, who have violated the obligation to register as a foreigner, or who have illegally stayed or worked in the country. In addition, foreigners who have been sentenced to imprisonment or a more severe penalty but have been released, as well as those who are deemed to have a significant reason to be concerned that their actions could harm the interests of Korea, public safety, the social order, or undermine moral values, may also be forcibly deported from Korea.
Note that those who have been sentenced to imprisonment or a more severe penalty and released include not only those who have been on trial in detention and received a suspended sentence, but also those who have been on trial without detention and received a suspended sentence for imprisonment or a more severe penalty. However, those who have been sentenced to a fine may also be subject to forced deportation, depending on the nature of their offense, such as drug offenses and sexual assault. In this case, they are not subject to the 13th item of Article 46 of Act 1, but to the 3rd item of the same article.
The decision to deport a foreigner is at the discretion of the head of the local immigration office. Therefore, even if someone is subject to forced deportation, if they wish to leave the country voluntarily at their own expense, the head of the local immigration office may issue an order to leave the country instead of forcibly deporting them, and in cases where there are humanitarian grounds, they may be granted temporary release or special stay permits after a rigorous examination.
On the other hand, deportation measures against those who hold permanent residency (F-5) status, which forms the basis of life in Korean society, should be carefully considered because they could cause irreparable human and material damage. However, those who hold F-5 status may still be subject to forced deportation if they have committed crimes such as treason or foreign exchange crimes under the Criminal Act, if they have been released after being sentenced to imprisonment or a more severe penalty for five years or more, if they have committed murder, rape or sexual assault, robbery, or if they have violated laws related to punishment for sexual violence and protection of victims, drug control, or national security laws, as determined by the Minister of Justice.
If a person who has received a deportation order wishes to file an objection, they must submit an objection statement to the Minister of Justice through the head of the local immigration office within seven days of receiving the deportation order. A person who has received a deportation order may not leave the country until the objection process is completed, and if they leave the country before the process is completed, they will not be able to return to Korea for a certain period of time.
Note that both forced eviction and entry refusal are unilateral acts by a country to force foreigners to leave the country, exercising its inherent sovereignty over the entry and exit of foreigners. However, forced eviction is permissible if the foreigner has been legally admitted, allowing them to appeal to domestic remedies within the territory, while entry refusal is not yet allowed, making it impossible for the foreigner to seek relief from the entry refusal country. Lee Han-ki, "International Law Lecture", 1996, pages 280-281
The important legal difference between entry refusal and forced eviction lies in the burden of proof in the expulsion process. In the case of entry refusal, the foreigner has the responsibility of proving that they have entered lawfully and cannot be refused entry, while in the case of forced eviction, the immigration authorities must prove that they can force the foreigner to leave.
On the other hand, in the case of foreigners who are subjected to forced eviction or denied entry, there are many cases where they are forcibly deported against their will, and there are also related human rights issues for foreigners, such as threats to their living bases. Therefore, advanced countries such as the United States, Japan, Canada, and Australia are cautious about operating such systems. In exercising the power of forced eviction, it should not be abused or operated for administrative convenience.
The Seoul Administrative Court stated that "the right of a state to expel foreigners it deems undesirable in its own country is a right established under customary international law, so the state is free to decide which foreigners it deems undesirable and expel them. Article 46 of the Immigration Control Act 1 stipulates the subjects of forced eviction in each subparagraph and gives discretion to determine whether to order forced eviction for foreigners who fall under each subparagraph from the perspective of the public interest. However, this discretionary power is not unlimited, and if there is a misunderstanding about the facts on which the discretionary power is based or if the exercise of the discretionary power violates the proportionality principle or the equality principle, it is illegal as an abuse of discretion." 2008guhap 662.


< Precedents on Forced Eviction >

1. “K”, a US national, entered the country with an international driver's license and worked as an English conversation instructor. Despite having no valid driver's license, “K” drove with a blood alcohol content of 0.119%, resulting in a fine of 2 million won for violation of the Road Traffic Act and an order of forced eviction. “K” filed a lawsuit against the order of forced eviction. The court considered various factors, such as the fact that “K” had adapted to life in Korea for several years and worked as an English conversation instructor, “K” had been in a common-law relationship with a Korean national for two years and had recently married, and there was no actual damage caused by the crime committed. Based on these considerations, the court found that the order of forced eviction had significantly lost its validity in terms of social norms, and thus ruled to cancel the order of forced eviction. Daejeon District Court, 2008 guhap 985.

2. “H”, a Chinese national, was forced to leave the country after being caught with a fake passport. “H” then changed his name through legal procedures in his home country and filed a lawsuit seeking to invalidate the order of forced eviction. However, the court stated that "unless there are special circumstances, such as the fact that the personal information on the new passport differs from the original passport due to a legitimate legal process, it cannot be considered a valid passport." The court found that “H” had used a new passport with completely different personal information to evade the difficulties of re-entry with his original passport due to his two previous illegal stays in Korea. Incheon District Court, 2007guhap3545.