Enactment of Refugee Law and extended suggestions on its unsolved issues
Jong-Chul Kim (Lawyer, Advocates for Public Interest Law, APIL)
*translated by Sung-Eun Lee
1. How was the Refugee Law formed?
The Refugee Law was passed at the South Korean National Assembly plenary session just two days before the New Year’s Day of 2012. South Korea’s legislation of refugee law was the very first “independent refugee law” legislated at the national level among the East Asian countries, and thus it has significant implication for refugee protection in Asia.
It was just two days before the New Year’s Day when South Korea’s National Assembly passed the “Law on the Status and Treatment of Refugees” (hereinafter known as the “Refugee Law”) at its last plenary session of the year 2011 (December 29, 2011). South Korea’s legislation of refugee law was seen as a significant as it was the very first independent refugee law passed at the national level in East Asia. Then what was a legal basis upon which to protect refugees in South Korea until then? Strange it may sound, but it was Immigration Control Act. Since joining the UN Convention Relating to the Status of Refugees 1951 (hereinafter known as the “Refugee Convention”) in 1992, South Korea had newly inserted additional clauses in the already-existing Immigration Control Act as a way to ratify the Convention, following Japan’s example.
In other words, a law to control immigration of foreigners had been regulating refugees who are seeking a shelter, as they are unable to return home due to risk of being persecuted. This clearly shows how the idea of national security was predominating over the issues of human security when dealing with refugee recognition and protection. All foreigners – whether refugees or not - can only be perceived as either legal or illegal through the lens of Immigration Control Act. And as we have been viewing refugees through this lens, which simply classifies foreigners into legal or illegal only, we have been neglecting refugees’ vulnerability and special circumstances where their illegal entry and stay in Korea is inevitable.
As a result, refugee activists and lawyers - who are acutely aware of the problems - started a series of discussions since 2006 in order to make independent refugee law and policies that are in line with the spirit of the Refugee Convention. In 2009, Seoul Bar Association made a petition to legislate this draft of Refugee Act, and Congressman Woo-Yeo Hwang took a representative motion and proposed it to the National Assembly; and the National Assembly finally passed the “Law on the Status and Treatment of Refugees” at the plenary session on December 29, 2011. However, this newly passed law is considerably different from what was originally proposed as it was drastically changed due to the Ministry of Justice’s objection against the original proposal with concerns about possible abuse of Korea’s refugee system.
Although it is true that legislation of this independent refugee law has opened new dimensions for us to view South Korea’s refugee system from the perspective of human rights protection rather than mere immigration control, the last minute changes made in the process of negotiation has still left us with many concerns and problems to solve. Then, let’s take a look at its achievements before we discuss about the problems of the Refugee Law.
2. What is going to be changed by the enactment of the Refugee Law?
The Refugee Law consists of three main sections: (1) procedure for recognition of refugee status, (2) refugee council, and (3) treatment of refugees. In this section, positive changes in “procedure for recognition of refugee status” and “treatment of refugees” are going to be discussed below.
2.1 Enhanced legal formalities of procedure for recognition of refugee status
In the United Kingdom, it is easy to find a general information guide to asylum application procedure at London Heathrow Airport. But in Korea, it was not until recently that information on asylum application procedure as well as application form became available at Incheon Airport since the enactment of the Refugee Law (Article 7.1).
In the past, even those female asylum seekers who had the traumatic experience of being raped in their countries of origin were interviewed by male immigration officers. Now, under the new Refugee Law, asylum seekers can be interviewed by an officer of the same gender if interviewees requests (Article 8.2).
Despite the fact that interview results can provide crucial information for identifying who is a refugee, asylum seekers were provided with neither interpretation and translation services nor an opportunity to go over their interview record for verification. Such ignorant, indiscreet interview procedure often raised issues of validity of the relevant information in the interview report. Nevertheless, this newly passed Refugee Law has improved ways to verify information collected from the asylum seeker’s testimony during the interview by guaranteeing the rights of asylum seekers to: (1) check and confirm their interview records (Article 15), (2) be given interpretation and translation services during the interview (Article 14), (3) have a person in a trust relationship sit in the interview together (if the interviewee wishes) (Article 13), (4) have the entire interview audio- or video-recorded if the interviewee requests (Article 8.3).
Even though consistency and coherence of the asylum seeker’s testimony is crucial for proceeding lawsuit in the asylum cases, the asylum application interview reports were used to be inaccessible even to asylum seekers themselves when filing an objection or revocation suits. Now, the Refugee Law permits asylum seekers to access and duplicate their asylum application interview reports (Article 16).
Formerly, there was no legal framework that allows a person, who is from a non-member country of the Convention but previously recognized as a refugee through UNHCR in a third country, to lawfully resettle in South Korea. Nevertheless, Japan accepting refugees for resettlement for the first time in 2011 has incited South Korea to open the door to refugees for “resettlement” in South Korea (Article 24).
2.2 Reflected the spirit of the 1951 Refugee Convention in guaranteeing human rights of refugees
Though no one has been actually deported during the process of drawing asylum lawsuits, the Ministry of Justice still had authority to evict an asylum seeker at any time if he/she had previously received a deportation order. Under the new Refugee Law, in principle, asylum seekers can stay in South Korea with the legal status of asylum seeker until the case is completely finalized (Article 2.4, Article 5.6).
Although family members of a “recognized” refugee could also be granted with refugee status according to the principle of family reunification, bringing family to South Korea itself was tremendously tough in reality because they had to go through the similarly unsafe, unlawful traveling route that the “already-recognized” refugee had used. To solve this problem, the Refugee Law has legally actualized this “principle of family reunification” by authorizing the Minister of Justice to give entry permits to family members of “recognized” refugees (Article 37.1).
Unlike the previous relevant laws and regulations, the Refugee Law ensures the rights to the same treatment as nationals in terms of public assistance, labor legislation, social security, and taxes that are clearly stated in the Refugee Convention, complying with South Korea’s “Framework Act on Social Security” and “National Basic Living Security Act“ (Articles 31 and 32).
It has also newly added regulations on: (1) accreditation of “non-North Korean” refugees’ academic and professional background and qualifications received overseas (Articles 35 and 36) - just like “Act on the Protection and Settlement Support of Residents Escaping from North Korea” does for North Korean refugees<!--[if !supportFootnotes]--><!--[endif]-->; and (2) allowing refugees to receive language training, education, vocational training to empower them successfully resettling to the South Korean society (Article 34).
There was an absurd incident that personal information of an asylum seeker - who was in the process of filing an appeal after asylum claim was rejected - was released to media. This surfaced the need of strong data protection for asylum seekers. As a result, acquaintances around the asylum seeker got the inside story of him/her - even the reasons of persecution - that he/she especially wanted to keep highly confidential. The Refugee Law now protects privacy and safety of the asylum seeker by punishing anyone who reveals personal information that enables others to identify an asylum seeker without the asylum seeker’s consent (Article 17, Article 47.1).
As discussed so far, the Refugee Law has certainly borne many fruits in refugee assistance and protection. Nevertheless, its latest version with last-minute changes has still left many problems unsolved, and this has consequently instigated discussions on revising the Refugee Law immediately after its legislation. Then, how should it be amended?
3. What changes should be made in the enacted Refugee Law?
3.1 Regulations on the “simplified” process of refugee status determination should be removed.
In certain cases, the Refugee Law allows some refugee status determination process to be skipped if needed (Article 8.5). But in fact, the refugee status determination process is all about interviews and fact-finding. Then, which part of the process can be omitted? The Refugee Law specifies several exceptional circumstances where the refugee status determination process can be simplified, but those regulations still reflect lack of understanding of reality.
(a) If an asylum seeker attempts to lie or conceal the facts
Regrettably, this Article 8(5) does not consider the fact that asylum seekers may possibly suffer from impaired memory due to experiences of persecution and/or they may intentionally attempt to lie to hide the facts for personal safety reasons.
(b) When an asylum seeker reapplies the claim without any change in circumstances
At least, interview and fact-finding processes on situation of the asylum seeker’s country of origin are required in order to determine whether the asylum seeker’s circumstance has changed or not.
(c) If an asylum seeker, who has been stayed in South Korea for longer than a year, applies for refugee status close to the visa expiration date
Unfortunately, even if an asylum seeker satisfies the substantive requirements to be recognized as a refugee, the reality is still uneasy for him/her to take a full advantage of this refugee protection system during the remaining time of their stay in South Korea. Asylum seekers are not necessarily well aware of the Korea’s refugee status application process in detail. Being an asylum seeker does not necessarily mean that he/she is well aware of the Korea’s refugee status application process. And even if they are familiar with the process in general, asylum seekers often agonize over deciding whether or not to apply for refugee status in Korea until the very last-minute of their stay.
(d) If a foreigner who has been scheduled for deportation applies for recognition of refugee status in order to delay execution of the eviction order
Nevertheless, whether an asylum seeker intends to delay execution of the eviction order or not, his/her refugee status cannot and should not be determined merely by his/her attempt to apply for refugee status, but through interviews and verifying facts. In other words, with careful consideration of such distinct characteristics of refugees’ psychosocial condition and seriousness of danger that asylum seekers may experience if return to the country of origin, the Refugee Law should be revised to conduct thorough asylum interviews and fair fact-findings in the refugee status determination process.
3.2 The Refugee Law should be revised to make the South Korean government obliged to provide at least one of these to asylum seekers: either work permits or financial support for living expenses.
This new Refugee Law allowing asylum seekers to receive work permits and financial assistance for living expenses (Article 40) is indeed much improvement from the previous Immigration Control Act, which only provides work permits to “exceptional” cases. However, it is problematic that both regulations leave the determination to government officials’ discretion. Therefore, the Refugee Law should be amended to make at least one of the two economic assistances as obligations under Article 40 (as “obligation clauses”) (i.e., providing financial assistance of living expenses if no work permit given, or granting a work permit if no financial assistance of living expenses provided) so that asylum seekers can live “a life at least minimally worthy of human dignity.” Without such change, the current Refugee Law undermining the right to live with dignity does not guarantee fundamental human rights, and this infringes on, though not de jure, de facto protection against international law principles on forced evictions.
If an asylum seeker can neither receive assistance for living expenses nor be permitted to find employment, this can further be a violation of the “right to life” (Articles 11 and 12) in the International Covenant on Economic, Social and Cultural Rights that South Korea has already ratified. There can certainly be exceptional cases when guaranteeing the “right to life” of the International Covenant on Economic, Social and Cultural Rights. For example, a country of asylum may gradually guarantee asylum seekers’ right to life if available resources in the country are restricted. If a country of asylum is a developing country, differential treatment between asylum seekers and nationals may be inevitable. But does South Korea have insufficient resources available for asylum seekers so that it can only gradually guarantee their right to life? Is South Korea a developing country? Even if South Korea were a developing country, it should not discriminate against asylum seekers and in favor of nationals based on non-economic reasons and the core human rights (the necessity like adequate food and water, housing, basic medical care, basic education) as clarified in the general comments by Committee on Economic, Social and Cultural Rights (CESCR).
Regrettably, the current Refugee Law infringes on the rights of asylum seekers to “live a life at least minimally worthy of human dignity,” concerning about abusing the refugee protection system. And it discriminates between nationals and asylum seekers for supporting with the necessities of life (food, clothing, and shelter – the minimum core requirements and basic claims that individuals can make based on the International Convention on Economic, Social and Cultural Rights). Thus, Article 40 of this Refugee Law, which makes it possible for the South Korean government to provide no financial assistance for basic living costs to asylum seekers while denying asylum seekers’ right to work, should surely be revised.
3.3 The regulation which allows the port of immigration to decide whether to submit the asylum applications received at the port to the application screening unit or not, should be amended.
Though it may sound strange, asylum seekers could not apply for asylum at the port of immigration until the legislation of the Refugee Law, because the port of immigration was not yet considered as the territory of South Korea normatively even though it is so physically. Consequently, asylum seekers who arrived at the port of Korean immigration had to apply for temporary landing permits first, legally enter Korea with the permit, and then apply for asylum. This surely is the delicate art of legal manipulation. The good news, however, is that the recently enacted Refugee Law has made it possible to apply for asylum at both airport and the port of immigration.
Nevertheless, the problem still lies with the clause that authorizes the port of immigration to determine whether or not to “submit” asylum applications to the refugee application screening unit even before the actual processes for refugee status determination begin (Article 6.3). Moreover, how to legally deal with such an unwarrantable proceeding when it is decided not to submit the claim is one of the consequent problems. Even if such cases could be litigated through administrative adjudication of the asylum application or general legal actions, there is yet no specific regulation on how asylum seekers in such circumstances can continue staying in South Korea during the litigation process.
Although further details on this may be specified and elaborated by its Presidential decree Article 6 Paragraph 4, whether authorizing the port of immigration to refuse to receive asylum application at the port and decide whether or not to submit applications to the refugee application screening unit would truly coincide with the Refugee Convention is strongly questionable. Therefore, in case of foreigners applying for asylum at the port of immigration, the Refugee Law should be revised to allow them go through the identical asylum application process just like any other general asylum seekers do, except restricting their personal freedom up to 7 days for identification procedure.
3.4 The regulation that states to apply the Refugee Law to those who claim asylum for the first time since its enforcement should be removed.
While Article 1 of the supplementary provisions enforces the Refugee Law from July 1, 2013, Article 2 states to apply the law “only to those who claim asylum for the first time.” It seems reasonable to apply this new regulation on the refugee status determination process of the applications received from July 1, 2013. However, enforcing the new regulations regarding treatment of asylum seekers from July 1, 2013 is very likely to violate asylum seekers’ equal rights stipulated in the South Korean Constitution (Article 11.1)<!--[if !supportFootnotes]--><!--[endif]-->. For instance, a person who applies for asylum on June 30, 2013 and receives refugee status on June 30, 2014 cannot be subject to the benefits of the Refugee Law at all “during” the process of refugee status determination as well as even “after” being recognized as a refugee. On the other hand, a person who applies for asylum on July 1, 2013 and receives refugee status on August 1, 2013 can be subject to the entire Refugee Law and its various benefits for asylum seekers and recognized-refugees. Hence, the Article 2 of the supplementary provision should be carefully interpreted in agreement with the Constitution that the regulations about treatment of asylum seekers are applied to “every” asylum seekers in South Korea from July 1, 2013 regardless of submission date of asylum applications. If this interpretation is beyond the logical limit of the text, the law should be amended.
So far, we have discussed about (1) what changes the enactment of the Refugee Law has brought to the circumstances of the refugee protection system in South Korea, and (2) what changes should be made further in the Refugee Law. Then, how was the original draft of the Refugee Law before the last-minute revision different from the latest “enacted” version of the Refugee Law? What was omitted and changed in the last-minute revision process? In other words, what are regrets and disappointment about the current Refugee Law?
4. Which contents came close to be included in the Refugee Law but omitted in the last-minute revision?
<!--[if !supportLists]-->· <!--[endif]-->Until the drafting process of the Refugee Law, the term “well-founded fear” had been msconceptualized with the idea of “fear with sufficient evidence,” stressing the “quantity of evidence.” That is why the “original” draft of the Refugee Law corrected this mistranslated term, and redefined refugees with the corrected concept of “fear well-founded with reasonable causes or grounds to provoke fear,” reflecting how much and what kind of evidence have proved to qualify internationally as a refugee. But in the final draft, the concept of “well-grounded fear” was changed back to the older, misconceptualized one (Article 2.1).
<!--[if !supportLists]-->· <!--[endif]-->The original draft allowed persons with humanitarian status to receive equal treatment as recognized refugees, but it ended up granting only work permits to them in the final draft (Article 39).
<!--[if !supportLists]-->· <!--[endif]-->Though the original draft justified the principle of “the benefit of the doubt” stated in the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status, the final draft only ended up allowing even the Minister of Justice to collect materials that are favorable to an asylum seeker for refugee status assessment (Article 9).
<!--[if !supportLists]-->· <!--[endif]-->While the original draft enabled asylum seekers to receive government subsidy for legal assistance and advice, the final draft was changed to simply recognize asylum seekers’ right to legal assistance, having a clause about government subsidy deleted (Article 12).
<!--[if !supportLists]-->· <!--[endif]-->The original draft included a regulation that allows recognized refugees to become nationalized Korean citizens, adopting the Refugee Convention (i.e., considering a separate procedure for naturalizing refugees because of their special circumstances and status as vulnerable people who fear persecution if they are returned to their countries of origin), but the final draft was changed to require a “general” naturalizing procedure – which is applied to a broader category of foreigners – to recognized refugees.
<!--[if !supportLists]-->· <!--[endif]-->The original draft allowed asylum seekers to testify orally in the appeals procedure, but the final draft removed the opportunities for oral testimony. Instead, the final draft has delegated to a presidential decree for specific appeals procedure and arranged a way to positively guarantee opportunities for asylum seekers’ oral testimony when issuing a presidential decree with supplementary opinion (Article 21.5, supplementary opinion).
As discussed above, these were the issues that civil society could not budge an inch to ensure the enactment of an appropriate refugee law in terms of the provisions of international conventions on refugees even until the last minute. That is why the enactment of the Refugee Law leaves us with mixed feelings, as it is still happy but disappointing, worrisome news at the same time.
<!--[if !supportFootnotes]--><!--[endif]--> Act on the Protection and Settlement Support of Residents Escaping from North Korea
Accreditation of Academic Background (Article 13)
Persons eligible for protection may obtain accreditation of the academic background corresponding to their respective levels of school education received in North Korea or foreign countries, as prescribed by Presidential Decree.
Accreditation of Qualifications (Article 14)
<!--[if !supportLists]-->(1) <!--[endif]-->Persons eligible for protection may receive recognition of the qualifications corresponding to all or part of those, which they acquired in North Korea or foreign countries, as prescribed in relevant Acts and subordinate statutes.
<!--[if !supportLists]-->(2) <!--[endif]-->The Minister of Unification may conduct supplementary education or re-education necessary for applicants for the accreditation of their qualifications, as prescribed by Presidential Decree.
<!--[if !supportLists]-->(3) <!--[endif]-->Where it is deemed necessary to implement paragraphs (1) and (2), a committee mandated to examine whether to grant the accreditation of qualifications may be set up as prescribed by Presidential Decree.
<!--[if !supportFootnotes]--><!--[endif]--> Constitution of Republic of Korea (Article 11.1)
All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status.
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