Can F-5 Permanent Residents Be Deported? Exceptions and Revocation

When a foreigner holding permanent resident status (F-5) gets caught up in a criminal case, the first question is usually "Can a permanent resident be deported?" Article 46 of the Immigration Act protects permanent residents from deportation in principle and makes exceptions only for a few serious cases. Separately, there is a system for revoking the status itself, so it is important to keep the two apart. How criminal records count when you apply for permanent residency is covered in criminal records and permanent residency or naturalization; here we look at people who already hold F-5.

Key points

• A permanent resident is in principle not deported, even if they fall under a ground for deporting ordinary foreigners.
• There are three exceptions: insurrection or crimes against the state's external security, release after a sentence of 5 years or more for crimes listed by Ministry of Justice rules, and helping illegal entry or exit or hiding illegal entrants.
• Revocation of permanent residency is a separate measure; after revocation a departure order can follow, although a general status of stay may be granted on application.

1. The rule: permanent residents are not deported

Ordinary foreigners can be deported for many reasons, such as working outside their status, failing to register, or being released after a sentence of imprisonment without labor or heavier. A person holding permanent resident status, however, is in principle not removed from Korea even if such a ground applies. Permanent residents are also free from limits on their activities and period of stay.

2. The exceptions: three cases where permanent residents can be deported

1. People who committed insurrection or crimes against external security under the Criminal Act
2. People released after a sentence of 5 years or more of imprisonment with or without labor who fall under Ministry of Justice rules
3. People who helped illegal entry or exit: providing or arranging ships, passports, visas, boarding passes or other documents or items to make foreigners enter or leave illegally or pass through Korea to enter another country illegally; hiding an illegal entrant, helping them escape, or providing or arranging transport for that purpose; and instigating or aiding these acts

The people in item 2 are those who committed the following crimes and whom the Minister of Justice finds it appropriate to deport:

• Murder, rape and indecent acts, or robbery under the Criminal Act
• Violations of the Act on Special Cases Concerning the Punishment of Sexual Crimes
• Violations of the Narcotics Control Act
• Violations of certain provisions of the Act on the Aggravated Punishment of Specific Crimes
• Violations of the National Security Act
• Violations of the provision on forming or running criminal groups in the Punishment of Violences Act
• Violations of the Act on Special Measures for the Control of Public Health Crimes

In short, a sentence of 5 years or more, release, a listed crime and the Minister's finding must all line up. A sentence of 5 years or more alone does not automatically make someone deportable.

3. Revocation of permanent residency: a different measure

Article 89-2 of the Immigration Act allows revocation only in the following cases:

1. The status was obtained by fraud or other improper means (in this case it must be revoked)
2. A final sentence of 2 years or more of imprisonment for a crime under the Criminal Act, the sexual crimes act, the act on protecting children and youth from sexual abuse, the aggravated punishment acts for specific crimes and specific economic crimes, the Narcotics Control Act, the Punishment of Violences Act or the public health crimes act
3. Prison sentences for violating any law within the last 5 years with final terms totalling 3 years or more
4. A person who obtained the status on condition of keeping an investment above a set amount breaches that condition
5. Acts against Korea's national interest in security, diplomacy or the economy

Korea's immigration practice guidelines also list the deportation exceptions in section 2 as grounds for revocation.

Before revoking, the authorities may call the person in to hear their opinion, and in that case must give notice of the reasons, date and place at least 7 days before the hearing. Even after revocation, a person who needs to keep living in Korea, meets the requirements for a general status of stay and applies may be granted that status. Without it, a departure order can follow. Once revoked, the person is no longer someone "holding permanent resident status", so the protection in section 1 no longer applies.

4. Departure orders, deportation and re-entry

• Departure order: a deadline is set and conditions such as a residence restriction may be attached. If you do not leave by the deadline or break a condition, a deportation order is issued without delay.
• Deportation order: you may object to the Minister of Justice through the head of the immigration office within 7 days of receiving the order. For detention and objections, see objections for detained foreigners.
• Re-entry: a person who left after a deportation order may be refused entry until 5 years have passed. For lifting, see applying to lift an entry ban.

5. What a permanent resident should watch during criminal proceedings

1. Check the exact sentence and offence. The deportation exception uses "5 years or more", while revocation uses "a final 2 years or more" or "3 years or more in total within 5 years". Work from the offence and sentence in the judgment.
2. Keep track of your card validity and re-entry period. The permanent resident card is valid for 10 years, and under the practice guidelines you lose the status if you do not come back within the re-entry exemption period (2 years from departure) or the re-entry permit period.
3. Prepare as soon as you get a hearing notice. Notice can come just 7 days before the hearing. Organize evidence of family ties in Korea, your living and economic base, and why you need to stay.
4. Check the requirements for a general status of stay in advance. Make sure there is a status you could apply for after revocation and that you can document its requirements.

6. What an administrative scrivener can do

We draft statements and opinions for revocation hearings, organize and translate proof of family ties and your life in Korea, prepare general status of stay applications, and draft objections to deportation orders. Investigation and trial defense in criminal cases, and representation in lawsuits, are outside the scope of an administrative scrivener and we do not handle them.

A hearing notice only has to arrive 7 days before the hearing, and the deadline to object to a deportation order is 7 days. Start by writing down the dates you received the judgment and any notice.

You can find permanent residency service information on HiKorea: https://www.hikorea.go.kr