출입국관리법 제63조 제1항에 대한 헌법불합치 결정과 입법 개선방안

Article 63 of the Immigration Act stipulates that if a foreigner residing in the country receives a deportation order but cannot be immediately repatriated out of the Republic of Korea, the foreigner may be protected in a protective facility. However, the Act does not set an upper limit on the period of protection for foreigners, and stipulates that foreigners may be protected indefinitely or for a long period of time “until repatriation is possible.” Furthermore, although protection under the Immigration Act is effectively detention with restrictions on physical freedom, the judgment on the initiation and extension of protection is made by the head of the regional immigration office and the Minister of Justice, who is merely the administrative agency that supervises the office, and criticism has been raised that there is no review by a neutral agency. Based on such critical discussions, the Constitutional Court ruled on March 23, 2023 that Article 63, Paragraph 1 of the Immigration Act violates the principle of prohibition of excessive restriction by not specifying an upper limit on the protection period, and that it violates the principle of due process by not involving a third independent agency or judicial agency in procedures such as the initiation and extension of protection, and thus ruled that it is unconstitutional, setting the revision deadline at May 31, 2025. Accordingly, although the revision of Article 63, Paragraph 1 of the Immigration Act, which is the subject of the unconstitutionality decision, is imminent, active discussions on this have not yet taken place. Therefore, this paper examines an improvement plan that takes into account the Constitutional Court’s decision on Article 63, Paragraph 1 of the Immigration Act, and ultimately seeks a model for a foreigner protection system that is consistent with our constitutional values ​​and suitable for reality.