I recently received inquiries about temporary release from protective custody.
The client was the younger sibling of an illegal immigrant detained in a shelter. The detained older sister was suffering from a condition known as pseudophakic bullous keratopathy. The symptoms included constant peeling of the eyelids, periodic elevation of intraocular pressure leading to deteriorating eyesight, and she had already lost 70% of vision in her left eye.
She had undergone LASIK surgery twice recently and was facing another major surgery. Due to the high cost of hospitalization, she was working part-time under uncomfortable conditions to supplement her expenses. Unfortunately, she was apprehended for illegal residence and employment, leading to her detention in the shelter.
※The foreign individual detained was of Mongolian nationality, and her eye condition required treatment at a university hospital in South Korea. It was known that there were no medical facilities in Mongolia capable of treating her condition.
Upon hearing the story, I prepared as much supporting evidence as possible, including a medical opinion recommending temporary release, and accompanied the client to the shelter.
Now, let's delve into the details of temporary release.
1. Temporary Release Eligibility
In the case of immigration criminal investigations, the severity of the violation determines whether it leads to a recommendation to depart, a departure order, or forced deportation.
If a departure order is issued, the individual has time to address any outstanding issues before leaving, such as settling financial matters, being involved in ongoing lawsuits, undergoing treatment, or running a business. However, in the case of forced deportation, individuals are immediately taken into custody at the shelter, leaving no time for addressing any issues. This is why foreigners targeted for forced deportation are considered eligible for temporary release.
When applying for temporary release, a security deposit ranging from 3 million won to 20 million won must be deposited. Restrictions such as limited residence and the presence of a guarantor are imposed. Depending on the situation, a maximum period of 6 months can be granted for each application. The security deposit can be refunded upon departure, but if contact is lost or the person does not leave within the granted period, the deposited security deposit will not be refunded.
2. Types of Temporary Release
1. General Release: A disposition where the director or branch director of the immigration office or foreigner protection office decides on temporary release within their authority.
2. Special Release: A disposition where, even if the requirements for general release are not met, there are significant reasons to grant temporary release, and the director who issued the protection order reports to the Minister of Justice in advance.
3. Eligibility for Temporary Release
1. The detainee (the person in protective custody)
2. Guarantor of the detainee, legal representative, spouse, direct family, siblings, family, or a lawyer* (*Refers to someone who can represent, not exclusively a lawyer)
4. Assessment Criteria for Temporary Release
1. Whether there is a significant threat to the life or body of the person protected in the facility or the possibility of irreversible property damage
2. Whether there is a risk of harming national security, public order, or public health
3. The criminal facts, age, personality of the person under protection, investigation process, and attitude in the facility
4. The risk of escape
5. whether there are any other significant humanitarian reasons
※ significant humanitarian reasons
- whether the person under protection falls under categories like patients, pregnant women, the elderly, or minors
- whether it is appropriate to protect them considering their health status
- It also considers whether there is a person to support a child under 18 years old if the person under protection is responsible for their care
- whether there are immediate reasons preventing extradition outside of South Korea.
5. Documents Required for Temporary Release
1. Application for temporary release
2. Supporting evidence for the reasons for temporary release
3. Documents proving the ability to pay the security deposit
6. Reasons for Temporary Release
1. For Medical Treatment of New Illness - Requires a medical diagnosis or confirmation of hospital treatment. 2. Related to Lawsuit - The protected person is the plaintiff in a lawsuit, and the amount in dispute is over 10 million won. - There is a need for the protected person to be outside for more than 6 days for lawsuit execution. - It is not a case where a lawsuit or administrative appeal has been filed against the protection order or deportation order. - Submission of a copy of the lawsuit and a certificate of filing. - If the protected person, as a party to the lawsuit with a claim amount of 10 million won or more, has received a decision from the Legal Aid Corporation, a copy of the decision must be submitted. 3. Related to Lease Deposit - There must be genuineness in the lease agreement. - The lease deposit should be 10 million won or more. - It is difficult to expect the return of the deposit while under protection, possibly due to reasons such as the landlord avoiding the return of the deposit.
4. Related to Unpaid Wages - Unpaid wages should be 10 million won or more. - There should be either a wage non-payment confirmation issued by the employer or a payment acknowledgment, or one of the labor ministry-issued certificates confirming unpaid wages. - It is difficult to expect the claim and receipt of unpaid wages while under protection. 5. In Case of Death of Spouse or Direct Ascendant/Descendant in Korea - Death certificate, admission and treatment confirmation, etc.
7. Deposit of Security Deposit
※ A security deposit ranging from 3 million won to 20 million won is determined considering the following conditions - The financial status of the person depositing the security deposit. - The likelihood of the protected person attending when temporary release is requested. - Violation of laws, the degree and frequency of the offense, motivation, and outcome, the existence of a stable residence and a guarantor. - The presence of the protected person's family in Korea, attitude within the protection facility, and the possibility of continuing to live there. - The possibility of the protected person's continued living in the protection facility considering health status, etc.
8. Qualifications and Restrictions on Guarantor
- A Korean citizen with a registered address in South Korea.
- A foreigner who has completed foreigner registration and is legally residing in South Korea.
- If the guarantor is the head of the organization, group, or company to which the protected foreigner belongs, and there have been three or more instances of not fulfilling the guarantor's responsibility within the last year from the date of the guarantor's application, the guarantor must deposit a minimum of 5 million won.
※ ※ The guarantor's qualifications may be restricted in the following cases
1. If the guarantor has not fulfilled the guarantor's responsibility within the last year from the guarantor application date.
2. If the head of the organization, group, or company to which the protected foreigner belongs has not fulfilled the guarantor's responsibility three or more times within the last year from the guarantor application date.
9. Extension of Temporary Release
1.Documents to be Submitted for Extension of Temporary Release - Application for extension of temporary release - Documents proving that the extension is inevitable 2. Assessment Criteria for Extension of Temporary Release ※ The maximum period that can be approved for extension is 6 months, taking into consideration the following factors. - The efforts to resolve the reasons for the temporary release request and their results - The reasons for the extension of the temporary release period - Other inevitable reasons for the extension of the temporary release period
10. Cancellation of Temporary Release
※ Temporary release may be canceled if any of the following apply
1. When the reason for temporary release no longer exists
2. Without justifiable reason, the obligation to attend is not fulfilled
3. There is a fear of escape or it is recognized that there is a fear of escape
4. The reason for temporary release stated in the temporary release application is found to be false.
5. Violation of the conditions attached to temporary release.
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