솔리드 행정사의 이야기

Why the Burden of Proof Lies with the Immigration Authority

As the number of foreign residents entering Korea continues to increase each year, government support for multicultural families is also expanding. Among the various visa categories, the Marriage Immigration Visa (F-6) is particularly significant, as the stability of a couple’s relationship directly affects the visa holder’s eligibility for extension or renewal. When marital conflict arises, it can naturally lead to serious anxiety about continued residency.

A recent Supreme Court ruling (2018Du66869) reaffirmed that even when a marriage has broken down, a foreign spouse may still be granted an F-6-(da) visa if the Korean spouse is at fault for the breakdown. This article explains the meaning of this provision, summarizes key case law, and outlines how I, as a certified administrative agent specializing in immigration matters, assist clients in similar situations.

1. Purpose of the F-6 Marriage Visa System

Under Article 12 of the Enforcement Decree of the Immigration Control Act and Table 1-2, a foreign spouse who “is unable to maintain a normal marital relationship due to reasons not attributable to themselves” may be eligible for the F-6-(da) visa.

This provision was established from a humanitarian standpoint to allow foreign spouses, whose marriages have broken down due to the Korean spouse’s fault, to continue residing in Korea legally and safely.

2. Case Overview and Judicial Precedent

In the case at issue, the Korean husband and his mother operated a convenience store where the foreign wife was forced to work long hours without pay. Despite medical advice to rest during early pregnancy, she was compelled to continue working and ultimately suffered a miscarriage. Following continued pressure and verbal abuse, the husband demanded a divorce.

The foreign spouse filed for divorce, and the Family Court ruled that the breakdown of the marriage was primarily the husband’s fault. The decision became final and binding without appeal. However, when the wife later applied for the renewal of her F-6 visa, the Immigration Office denied her application, citing the husband’s claim that she had voluntarily left home.

The Supreme Court held that when the immigration authority denies an application for an F-6 visa, the burden of proof rests with the administrative agency to establish that the applicant does not meet the requirements. The Court emphasized that overturning a Family Court’s divorce judgment should be done with extreme caution, and administrative authorities cannot simply rely on the statements of one party.

3. Practical Implications: Burden of Proof and the Role of Administrative Agents

The Supreme Court’s ruling clarified an important protection for foreign spouses:
when an administrative agency issues a denial, it bears the responsibility to prove the grounds for such a decision.

In practice, this means that:

• The Immigration Office must respect Family Court judgments regarding fault and divorce.

• Administrative discretion (재량행위) must stay within the legal framework and cannot be arbitrary.

• Applicants should ensure that their documentation and evidence clearly demonstrate the marital circumstances and causes of breakdown.

As an administrative agent (행정사), I assist clients by:

• Collecting and organizing evidence to prove the continuation or breakdown of a marital relationship.

• Preparing and filing administrative appeals (행정심판) against unjust visa denials.

• Advising on status changes, extensions, and humanitarian stay options.

• Supporting foreign spouses in building financial and residential stability within Korea.

4. My Expertise and Commitment

As a licensed administrative agent specializing in immigration and visa affairs, I have conducted extensive research on court precedents and practical case studies concerning the F-6 visa system. I assist foreign spouses who face unstable residency or unjust denials in restoring their legal rights and ensuring continued residence in Korea.

If you are facing visa difficulties due to marital breakdown or a denial of your F-6 status, please do not hesitate to contact Solid Administrative Office (Solid 행정사).
I am committed to helping you and your family live safely and confidently in Korea, backed by legal precision and human understanding.

Source: Korea Administrative Society News (October 28, 2024)

Written and Explained by: Jongguk Park, Certified Administrative Agent (Solid 행정사)