헌법불합치결정에 따른 출입국관리법상 보호(이민구금) 제도 개선방안

In 2023, the Constitutional Court held nonconforming to the Constitution Article 63, Section (1) of the Immigration Control Act, which allows a person under a deportation order to be detained while not setting an upper time limit of the detention. It explained that the provision violates both the rule against excessive restriction and the principle of due process of law and thus infringes the personal liberty of the detainee. In this article, issues that must be discussed in the subsequent legislative process were reviewed and desirable amendment directions were suggested. First, one year or 18 months is appropriate as the upper limit of the detention period when considering the current situation in South Korea. While setting the upper limit, regulations on the status of released detainees and the non-custodial alternatives to detention should also be stipulated. Furthermore, in order to curb long-term detentions, not only setting an upper limit but also a substantive and procedural device that can prevent prolonged detention are necessary. Next, given the importance of personal liberty and the difficulty of securing neutral experts, courts are appropriate as institutions to control immigration detention. In addition, in order to faithfully review long-term detention, which highly requires procedural control, it is desirable to have the court intervene not from the initial stage of detention but from the extension stage. Furthermore, at each stage of initiation and extension, the opportunity to submit an opinion must be guaranteed, and the right to habeas corpus petition must be granted. In addition, it is desirable to stipulate the right to receive assistance of counsel in express terms.