Today, we will look into the precautions and required documents when applying for temporary release from detention related to unpaid wages, based on a recent case. We will also discuss the fines for illegal stay and illegal employment.
First, the client was the employer of a detainee who happened to be a Chinese national in an undocumented status. The detainee had been caught driving without a license and was transferred to a detention center for investigation.
Despite the business struggling and the employer being unable to pay the detainee's wages on time, the detainee had worked diligently without complaint. The employer considered the detainee more than just an employee; they saw them as someone who had been more helpful than even their own siblings and wanted to do the right thing by seeking temporary release from detention based on humanitarian grounds.
- Being detained at the detention center is very inconvenient and challenging. Therefore, friends and family of the detainee, who understand that the detainee must leave Korea eventually, hope for a more comfortable departure.
- Moreover, if the detainee leaves without paying the fines, they may lose all hope of returning to Korea. However, by paying the fines and leaving, they may still have a chance to return.
- Despite knowing that even with the fine payments, it may not be easy to get temporary release from detention, the client decided to pursue it with the hope of trying everything they could.
In reality, pursuing temporary release from detention from the employer's perspective is challenging because it involves preparing a substantial amount of money for both the fines for illegal stay and a deposit of 20 million KRW (Korean Won). Therefore, it can be difficult without humanitarian considerations like in this case.
Additionally, when it comes to the fines for illegal stay and illegal employment of the detainee, the costs can add up to several tens of millions of KRW.
In this case, the fine for illegal stay was 20 million KRW. Therefore, a total of 40 million KRW was prepared, including the 20 million KRW deposit.
Illegal stay is often accompanied by illegal employment. To apply for temporary release from detention, all fines must be fully paid to apply temporary release from detention. ※ It should be noted that fines cannot be paid in installments.
Also, it depends on the specific circumstances of each case whether paying fines only for illegal stay allows for applying for temporary release from detention. In some cases, it may be necessary to pay fines for both illegal stay, illegal employment, and the employer's illegal employment of foreign nationals. Therefore, it is essential to confirm this directly for each case where the detainee is detained for immigration violations.
※ In this particular case of immigration violations, fines were imposed focusing on the larger of the two fines, which are fines for illegal stay and fines for illegal employment, without over-penalizing fines for employing foreign nationals with illegal residency status.
<Fine Standards Based on the Duration of Illegal Stay>
(1) Less than 1 month = 2 million KRW
(2) 1 month or more but less than 3 months = 3 million KRW
(3) 3 months or more but less than 6 months = 4 million KRW
(4) 6 months or more but less than 1 year = 7 million KRW
(5) 1 year or more but less than 2 years = 10 million KRW
(6) 2 years or more but less than 3 years = 15 million KRW
(7) 3 years or more but less than 5 years = 20 million KRW
(8) 5 years or more but less than 7 years = 25 million KRW
(9) 7 years or more = 30 million KRW
<Fine Standards for Illegal Employment and Employing Illegal Stay Foreign Nationals>
1. People who engage in employment without obtaining the appropriate residency status to work
※ If a foreign national engages in employment without the appropriate residency status, depending on the fine amount, they may face forced deportation or a denial of visa extension.
2. Employers who hire individuals without the appropriate residency status for employment
Furthermore, it is essential to understand that when applying for temporary release from detention due to unpaid wages, the detainee must have a convincing reason and provide supporting evidence. In this case, the release was requested based on unpaid wages.
When the employer requests temporary release from detention due to unpaid wages, the response from immigration authorities is typically, "If the employer acknowledges the unpaid wages and is willing to pay if they have the money, even if the detainee cannot receive it in Korea, we can send it to the detainee's home country. Don't worry."
To apply for temporary release from detention based on unpaid wages, three conditions must be met
Three conditions must be met when applying for temporary release from detention based on unpaid wages
- In cases where the reason for temporary release is related to unpaid wages, the following conditions must all be satisfied.
1. The unpaid wages must be at least 10 million KRW.
2. unpaid wage confirmation letter from the employer, payment agreement, or the Ministry of Labor's confirmation of unpaid wages.
3.★ It should be difficult for the detainee to expect to receive the unpaid wages while in their protected status
The third condition should be emphasized - it should be difficult for the detainee to expect to receive the unpaid wages while in their protected status. This is where most cases of temporary release from detention based on unpaid wages fail. In fact, they mostly fail at this point.
(1) Either they cannot meet the third condition because they did not prepare enough evidence
(2) or they somehow prepared evidence to meet the third condition, but it was not accepted, resulting in denial.
Therefore, if you are determined to apply for temporary release from detention, knowing that it is challenging, seeking professional assistance is recommended.
Finally, let's take a look at the required documents when applying for temporary release from detention.
Documents Required for Temporary Release from Detention (Required Materials)
1.Application for Temporary Release from Detention
2.Supporting documents for the reason for temporary release - objective evidence such as medical certificates, letters of recommendation, or death certificates
3.Proof of the ability to pay the deposit (20 million KRW)
- Cash or cash guarantee certificate / Bank account statements in the name of the protected foreigner (including spouse) or the guarantor
4.Guarantor's certificate and a copy of the guarantor's identification
5.Proof of the relationship between the detainee and the applicant - family relationship certificate, marriage certificate, etc.
6.Proof of residence
- Lease agreement or land registration record
- If residing with a friend: Confirmation of residence provided by the friend, and a copy of the friend's identification
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