The entry of a foreigner into the Republic of Korea is composed of objective conditions, such as physically arriving within the territory of Korea, and subjective conditions, such as the intention to enter the country. The interpretations and precedents of the meaning of "entry" under the Immigration Control Act are divided into the territorial theory and the immigration examination (permission) theory. According to the territorial theory, "entry" refers to physically entering the territory of Korea, where the sovereignty of the country applies, regardless of whether the foreigner has received permission from an immigration officer. According to the immigration examination (permission) theory, "entry" refers to the normative entry after passing the immigration examination and obtaining permission from an immigration officer. (Lee, Cheol-woo, et al. "Immigration Law." Korea Immigration Foundation, 2016, pp. 80-82.)




The Supreme Court has defined "entry" under the Immigration Control Act as the objective requirement of physically arriving within the territory of the Republic of Korea and the subjective intention to enter. The concept of "entry" under the Immigration Control Act is divided into two schools of thought: the territorial theory and the immigration inspection (permit) theory. According to the territorial theory, entry means physically entering the area where the sovereignty of the state is exercised within the territory of the Republic of Korea, regardless of whether the individual has obtained permission from an immigration officer. In contrast, the immigration inspection (permit) theory defines entry as being allowed to enter after passing immigration inspection by immigration officers, meaning that entry is regulated. Therefore, under the Immigration Control Act, the term "entry" refers to an individual who physically enters the territory of the Republic of Korea from outside, including the national waters and airspace, and this is the basis for determining the time of the offense for the violation of the Immigration Control Act (Article 93-2 (2) (1)), which punishes those who illegally bring in foreigners who require immigration inspection or those who facilitate such acts.
In practice, even if there is no immigration inspection site within the national waters or airspace and immigration inspection is carried out at ports or airports within the territory, the act of entering must be considered to have occurred when the individual enters the territory of the Republic of Korea. 2005. 1. 28 Sentence 2004do7401

Therefore, the Supreme Court takes a position closer to the territorial theory. However, the lower court ruled that the offense occurs only when an individual enters without undergoing immigration inspection by an immigration officer at a port of entry, which is closer to the immigration inspection (permit) theory.


In the context of immigration regulations, foreigners residing within the territory of South Korea can be divided into three main types. Firstly, those who have undergone immigration inspection at the port of entry but have been denied entry (they are temporarily protected in the departure lounge and are subject to deportation under the responsibility of the transport operator), secondly, those who have entered South Korea illegally without undergoing immigration inspection (subject to forced deportation), and thirdly, those who have undergone immigration inspection and have been granted entry into the territory of South Korea (cases where both physical and normative entry are established). Lee Cheol Woo et al, page 84

In countries that have land borders with other countries, there may not be a need to distinguish between immigration and landing with regard to foreign entry. However, in Japan, which is surrounded by water, immigration and landing are distinguished, with entering Japanese territory being classified as the "immigration stage" and coming ashore to apply for permission from immigration authorities at the immigration control area being classified as the "landing stage."
In South Korea, the Immigration Control Act stipulates separate regulations for foreign entry and landing permits. Landing permits are granted in cases where there are special circumstances, such as for crew members, refugees, emergency landings, and rescues, and do not require strict immigration requirements, which is different from entry permits. The Immigration Control Act in South Korea classifies landing permits into five categories: crew member landing permits, tourist landing permits, emergency landing permits, disaster landing permits, and temporary refugee landing permits.
Whether or not to grant foreign entry permits is a discretionary act of the country, and there is no international legal obligation for a country to recognize the entry of foreigners who do not fulfill treaty obligations. Therefore, each country in the world may prohibit or refuse entry to foreigners for political, economic, national security, criminal, public health, and other reasons.
South Korea also regulates the grounds for denying entry under Article 11 (Prohibition of Entry) of the Immigration Control Act, citing uncertain concepts such as public health risks, infringement of national interests and public safety, and violation of morals. Under Article 11, Paragraph 1, Subparagraph 3 and 4, of the Immigration Control Act, entry is prohibited for those who are deemed to have a justifiable reason to fear that they may engage in actions that may harm the interests or public safety of South Korea, engage in actions that may harm economic or social order, or violate morals. In addition, the Minister of Justice may issue a travel ban on foreign nationals who are deemed to be a risk to national security or public safety or who are likely to engage in activities that violate public morals.
Finally, according to Article 12 of the Immigration Control Act, "foreigners wishing to enter the Republic of Korea must undergo immigration inspection by immigration control officers at the port of entry." Therefore, immigration officers may refuse entry to undesirable foreigners to the Republic of Korea, such as illegal immigrants with forged passports or visas, those who are prohibited from entry, and those whose purpose of entry is suspected of not conforming to their Residence Status.

< Examples of Entry Prohibitions >

In 2002, the Military Manpower Administration requested that the Minister of Justice prohibit entry into Korea for popular singer “R”, who had renounced Korean nationality and opted for U.S. citizenship as a dual national of Korea and the U.S. “R” was ultimately denied entry at Incheon Airport in February 2002 and returned to the U.S. “R” had briefly entered Korea for his grandmother's funeral, but entry for commercial purposes such as concerts has been prohibited since then. Some human rights groups filed a petition with the National Human Rights Commission in 2003, arguing that the government's entry ban on “R” violated the freedom of pre-residency guaranteed by the Constitution. The National Human Rights Commission responded that "while the freedom of pre-residency guaranteed by the Constitution includes the freedom of entry and the freedom to choose and change nationality for citizens, the freedom of entry is not recognized for foreigners, unlike for citizens." In constitutional law, the freedom of pre-residency is viewed as a right of citizens rather than a human right, and it is generally considered that the freedom of entry for foreigners is not recognized and that permission for entry is at the discretion of the government.