If a foreigner's drug case ends with a fine, is their stay in Korea safe?

When a foreigner who works or has a family in Korea becomes involved in a drug case, the first thing the family asks about is usually not the sentence but their stay. They want to know whether they can keep living here if the punishment is light. The answer is not decided by the criminal outcome alone, because the Immigration Act operates separately from the criminal process.

Standards for deportation

The Immigration Act expressly makes a person who has been sentenced to imprisonment without labor (금고) or a heavier sentence and then released subject to deportation (Article 46(1)13). A typical example is someone released after serving a prison sentence. A person in whom a ground for entry ban arises or is discovered after entry is also subject to deportation (item 3 of the same paragraph), and the grounds for entry ban include drug addicts and persons who are feared to harm social order or good morals (Article 11(1)).

So even if a case ends with a fine or a suspended indictment (기소유예), there is still a chance of becoming subject to immigration review. A fine is not ‘imprisonment without labor or a heavier sentence’, but the fact that the case involves drugs may be assessed in connection with the grounds for entry ban, and it may also count against you in reviews for extension of stay or change of status.

For this reason, in cases involving foreigners, we factor in the effect on immigration procedures when setting the goal for the criminal outcome. Even with the same suspended sentence, what happens next can differ depending on the type of status of stay and the person's life in Korea.

Procedures that begin as the criminal process ends

Public officials who discover a person subject to deportation in the course of their duties must notify the immigration office, and correctional facilities must also report foreigners whose release has been decided (Article 84). So immigration review often begins around the time the criminal process is wrapping up.

If the review finds the person subject to deportation, a deportation order is issued, and the person may file an objection with the Minister of Justice within 7 days of receiving the order (Articles 59 and 60(1)). Even a person subject to deportation may be given a departure order if they wish to leave voluntarily at their own expense (Article 68), and a person who left after receiving a deportation order may be banned from entry for 5 years (Article 11(1)6).

Permanent residents and leaving Korea during an investigation

Permanent residents are in principle not deported, but there are exceptions, such as persons released after being sentenced to imprisonment with or without labor for 5 years or more who fall under the Ministry of Justice ordinance (Article 46(2)). If the charge carries a heavy statutory penalty, such as importing or trafficking, the first step is to examine whether this exception could apply.

A foreigner under investigation or on trial may be barred from leaving Korea (Article 29). Because foreigners can leave the country at any time, the risk of flight tends to be rated highly, so at a pre-arrest detention hearing (영장실질심사) you need to show your life in Korea with materials on your residence, job, family and length of stay. If you have a basis for staying, such as marriage migration or employment, it is a good idea to prepare to explain those circumstances both in the criminal process and in the immigration review.

If your Korean is limited, you can request an interpreter during questioning. You should sign only after checking that what was interpreted has been recorded accurately in the record of statements, because a record you signed without understanding it is hard to correct later.