Application of Labor Laws to Illegal Foreign Workers
Bongsoo Jung (Korean labor attorney, KangNam Labor Law Firm)
I. Introduction
According to the statistics of the Ministry of Justice, as of May 2025, the number of illegal aliens in Korea was 381,216 people, which is 14.2% of the total number of aliens (2,692,729). The Immigration Control Act was designed to manage foreign workers strictly according to the principle of a Korean-first employment policy, and the Act on Foreign Workers Employment, etc. (hereinafter referred to as the Foreign Workers Employment Act or the FWE Act) was also introduced to manage the non-professional employment (E-9) of the majority of foreigners along with the visiting employment (H-2) of overseas Koreans. As the number of illegal foreign workers who have recently violated the Immigration Control Act and the Foreign Workers Employment Act has increased dramatically, it is necessary to understand their protection under the labor laws, and the limitations on that protection.
II. Related Laws to Restrict Illegal Aliens
1. The Immigration Control Act
The Immigration Control Act is the compulsory regulation stipulating matters concerning safe border controls through the immigration control of all nationals and foreigners who enter or depart Korea, control over the sojourn of foreigners who stay in Korea, and procedures, etc. for the recognition of refugees. Any foreigner can stay in Korea within the scope of their status and period of sojourn (Article 17). Also, foreigners intending to be employed in Korea shall attain the applicable status for employment activities, and employers may employ any person having the proper work status (Article 18). There are three kinds of work-related employment: non-professional employment, professional employment, and employment through sojourn.
2. The Foreign Workers Employment Act
The Foreign Workers Employment Act was designed to promote a smooth supply to meet the demands for manpower along with a balanced development of the national economy through the systematic introduction and management of foreign workers. Foreigners to whom this Act applies are those engaged in non-professional employment (E-9) and overseas Koreans engaged in visiting employment (H-2). Foreigners hired for jobs classified as non-professional employment (E-9) use the Employment Permit System. This Employment Permit System grants permission to hire particular foreigners, after employers have unsuccessfully made an effort to hire domestic workers. After such effort, foreigners can be invited after signing a contract for employment with the particular employer. Visiting employment (H-2) has used the Employment Permit System containing the characteristics of the Labor Permit System (LPS). Through this LPS, Foreign nationality Koreans are allowed to come to Korea first and attempt to find a job within a limited time period. If they cannot find a job within that time, they must leave Korea immediately. Foreign workers may be employed up to three years from the date of their entry, and they may have their employment extended one time only by a maximum of two additional years, which means that their total period of residence in Korea can be up to five years (Article 18, Article 18-2).
3. Related judicial ruling
The Supreme Court explained the purpose for strictly controlling foreigners in violation of the Immigration Control Act as follows: The Immigration Control Act regulates in its Article 18 (paragraph 1) that a foreigner intending to be employed in Korea shall attain the status of sojourn eligible for employment activities, and also regulates in the same Article (paragraph 2) that no foreigner having the status of sojourn under paragraph (1) shall work at any place other than the designated working place. Therefore, the purpose of this legislation was not simply to restrict the illegal stay of foreigners, but also to regulate the qualifications of eligibility for employment and block foreigners not eligible for employment so that it could protect the status of the domestic employment market from immigrating not-eligible foreign workers, manage the foreign workforce effectively, and protect domestic workers. This means that this law was enacted to directly restrict foreign workers not eligible for employment in fact.
III. Application of Labor Laws
1. Individual employment relations
Korean labor laws apply to those who offer work to earn wages without any discrimination, according to the principle of territorial privilege for jurisdiction. If a foreign worker whose employment contract was made in his/her home country provides labor service in Korea, or if a foreign company and a foreign employee agreed that his/her home countrys labor laws would apply to his/her employment contract, excluding the application of Korean labor laws, Korean labor laws are applied in accordance with the compulsory law of a workplace in Korea providing labor service according to the Conflict of Laws Act, Article 28 (Employment Contracts).
While providing for labor service, Article 6 of the Labor Standards Act prohibits discriminative application based on an individuals different nationality, by stipulating that no employer shall give discriminatory treatment in relation to working conditions on the basis of nationality. Exceptionally, regarding whether the protection of the labor laws regarding illegal foreign workers is applied or not, the Labor Ministry judged that illegal foreign workers were not subject to protection as any employment contract made by illegal foreign workers would not be in effect. However, later, as the court determined an illegal workers injury as occupational , and also admitted foreign trainees eligibility for severance pay , the Labor Ministry changed its guidelines and accepted that illegal foreign workers were subject to the protection of the labor laws.
The court clearly ruled whether the Labor Standards Act is applicable to illegal foreign workers as follows: The regulation restricting employment of foreigners is a control act to prohibit foreigners not eligible for employment from being employed. This cannot be a regulation to restrict the legal effect of the labor right that an illegal foreign worker with no eligibility for employment has obtained by providing labor service, and the legal effect of labor laws concerning employment status. Therefore, even if a foreign worker without eligibility for employment made an employment contract in violation of the regulation restricting employment of the Immigration Control Act, it cannot be determined that the employment contract itself be regarded as clearly invalid. However, since the employment status makes it possible for a foreign worker to participate in employment activities, in a case where a foreign worker is illegal, the employment relationship should be stopped. Furthermore, both parties can always cancel the employment contract due to the absence of employment eligibility.
According to the guideline for handling foreign workers labor cases from the Ministry of Employment and Labor, foreign workers labor cases shall be dealt equally with those of domestic workers. In cases where a foreign worker has worked in a workplace to which the Labor Standards Act applies, the same Act applies to foreign workers there whether their employment violates the Immigration Control Act or not. Even though the labor inspector has found in the course of investigating the case that the foreign worker and his/her employer violated the Immigration Control Act, the labor inspector shall inform the Immigration office of that fact after implementing remedy for unpaid wages and/or other violations of labor laws in terms of protecting the workers human rights.
2. Collective labor relations
Foreign workers residing in Korea have exercised the rights of labor through their participation in labor union activities, just like Korean workers. Foreign workers with legitimate residence visas can establish a labor union with a membership of foreign workers only. However, it has become a matter of grave concern as to whether a labor union which included some illegal foreign workers could be recognized as a legitimate labor union in the Korean legal system.
On April 24, 2005, 91 foreign workers residing in Seoul, Gyeonggi-do, and Inchon established a migrant workers labor union, and submitted an application for labor union establishment to the Seoul Labor Office. The Labor Office demanded adjustment of the application by requesting that illegal foreign workers be eliminated from membership, as the union contained a majority of illegal foreign workers. When there was no follow-up submission of a corrected document, the Labor Office returned the establishment application to the labor union.
On June 27, 2005, the migrant workers labor union filed a suit at the Seoul Administrative Court to have the Labor Offices rejection of the application for establishment of a labor union cancelled. The Seoul Administrative Court ruled that the Labor Offices returning disposition was justifiable and rejected the labor unions claim. In its ruling, it stated, As those illegal foreign workers with no right to reside in Korea are strictly prohibited from employment according to the Immigration Control Act, their legal status does not allow them to maintain and improve working conditions and to upgrade their status on the condition of continuing labor relations. Therefore, they do not have the substantial requirements needed under subparagraph 4 of Article 2 of the Labor Union Act, and so it would be justifiable to return the application of labor union establishment in accordance with subparagraph 3 (1ho) of Article of 12 of the Labor Union Act.
However, on February 1, 2007, the Seoul High Court ruled that returning the application of labor union establishment would be illegal, and canceled the Labor Offices disposal. The High Court stipulated in its ruling: Despite the status of illegal foreign workers, as long as they are providing work in fact and live on wages, salary, or other equivalent form of income earned, they qualify as workers who can establish a labor union. Even though the Immigration Control Law regulates that they are strictly prohibited from employment, this enforcement is to prohibit illegal foreign workers from being employed in actuality. As the illegal foreign workers are providing work in fact, it is difficult to determine the original employment contract invalid just because they are not eligible for employment. Therefore, this enforcement regulation cannot be allowed to prohibit an action where illegal foreign workers get together to make a workers association to improve their working conditions by means of establishing an equal footing. The court cancelled the Administrative Courts ruling by explaining that the Labor Offices returning of the application for the establishment of a labor union was an illegal disposal.
The Labor Office appealed the appellate courts ruling to the Supreme Court, and the final decision has not yet been made. Accordingly, the Labor Offices disposal to return the application of the migrant workers to establish a labor union has been valid for the past 10 years so far. This means that Korea does not guarantee the rights of labor for illegal foreign workers in collective labor relations.
IV. Conclusion
The application of labor laws for illegal foreign workers has been restricted due to their conflict with compulsory enforcement of the Immigration Control Act. The enforcement of labor laws for illegal foreign workers has been implemented at the barest minimum only, for the work provided, in terms of human rights protection. It is general practice that foreign workers only apply for the remedy application of the labor laws as a last recourse when anticipating forced deportation from Korea, so in reality, most illegal foreign workers can get no help from the protection of the labor laws due to the risk of forced deportation, and so they endure forced labor, exploitation of wages, violation of human rights, etc. As a matter of fact, it is almost impossible for an individual illegal foreign worker to apply for remedy under the labor laws. Therefore, a migrant labor union is necessary to represent these illegal foreign workers, to improve their working conditions in a way that the individual illegal foreign worker cannot do.
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