외국인 입국규제의 문제점 및 개선방안에 관한 연구 - ‘입국규제 업무처리 등에 관한 지침’을 중심으로 -

Entry restrictions on foreigners are based on the exercise of the country’s inherent sovereignty and are an area where wide discretion is recognized. Korea regulates the entry and exit of foreigners based on the Immigration Control Act, and in particular, Article 11 of the Immigration Control Act stipulates foreigners who are prohibited from entering the Republic of Korea. However, it mainly uses vague concepts such as “concerns of causing harm to public health,” “interests or public safety of the Republic of Korea,” and “good customs,” so the specific content is unknown, and the Enforcement Decree and Enforcement Rules of the Immigration Control Act, which are subordinate regulations, do not include provisions that specify each reason for entry prohibition. Therefore, in practice, entry restrictions on foreigners are implemented based on the internal work guidelines of the Ministry of Justice. However, the “Guidelines on Processing Entry Regulations” are not subject to disclosure, so not only foreigners who are subject to the regulations but also citizens cannot know the content, which is a problem. Even if there are circumstances where entry restrictions cannot be kept confidential due to reasons such as national security, the current situation in which the specific criteria for entry bans that affect the significant rights and obligations of foreigners who are the subjects of the regulations are completely unknown has the problem of hindering administrative transparency and predictability. Looking at the US and the UK from a comparative legal perspective, the US stipulates in detail and specifically the reasons for entry bans in Article 212 of the Immigration and Nationality Act. The UK only stipulates the general principles of entry restrictions in its immigration law, but specifically stipulates detailed contents through delegation in the immigration regulations. In 2022, our court partially ruled in favor of the plaintiff in a lawsuit requesting disclosure of information on refugee processing guidelines, providing an opportunity to reconsider the practice of nondisclosure of administrative guidelines by determining that provisions that are likely to not interfere with refugee recognition review work even if disclosed should be partially disclosed. Although this is related to refugee processing guidelines, it is thought that it can be effectively applied to the “Guidelines on Entry Regulations, etc.” for foreigners. Article 20 of the Administrative Procedure Act stipulates the establishment and public announcement obligations of disposition criteria, but in exceptional cases where the nature of the disposition makes it significantly difficult or there is a reasonable reason to believe that it will significantly harm public safety or welfare, it shall not be announced. However, since the reasons for entry ban in the 「Work Guidelines on Entry Regulations, etc.」 are directly applied as specific standards for disposition, when each reason and prohibited period are reviewed in terms of the content of the relevant regulations, they do not fall under cases in which publication is difficult due to their nature, or public safety is not harmed even if made public. In addition, in light of the content of the entry regulation laws of the United States and the United Kingdom, it is thought that the disclosure of the relevant content will not interfere with immigration control work. This interpretation can be equally applied to the interpretation of information subject to nondisclosure under Article 9 of the Disclosure Act. In other words, even in cases related to immigration control regulations, whether or not information is subject to nondisclosure must be determined based on its content, so provisions generally applied to specific disposition criteria related to reasons for entry bans, other than those related to internal procedures and those related to national security, national defense, unification, and diplomacy, should not be included in nondisclosure information. Furthermore, the direct criteria for the entry ban on foreigners subject to entry restrictions need to be legislatively improved in the form of a law or enforcement ordinance rather than the current form of a non-public internal guideline. However, even if it is difficult to standardize at the upper level right away, the predictability of the regulated party should be guaranteed through the disclosure of the guideline, and the transparency of the administration should be secured to ensure compliance with the principle of rule of law.