Living with a Newly Enforced Refugee Law 

for One Year in Korea

 


 

1. Introduction

 

The Refugee Law, passed in National Assembly on 31 December 2011, was enforced on 01 July 2013. In analyzing the 1st year of the Refugee Law enforcement, I would like to raise the following four points:

 

Firstly, the existence of the Refugee Law admittedly has led to some progress in terms of refugee protection. Secondly, as the lack of implementation of the law, there has not been much of a change in practice. Thirdly, one year enforcement of the law has disclosed innate problems of the law. Lastly, there has been a backsliding of practices for the reasons of fear of mass influx or misusages of the refugee protection system. I will elaborate on these points hereinafter starting from the last.

 

2. Backsliding of Practices

 

In 2013, the number of refugee applicants was 1,574, increased by 431 from 1,143 in 2012. The number for 2014 is expected to be similar to the one in 2013, considering the number of refugee applicants in 2014 late May; 800. The reason for the slight increase in the number is increase in international conflict situations, such as crisis in Syria.

 

However, the Ministry of Justice responded quite defensively in the early phase of the Refugee Law implementation due to the fear of mass influx or possible misuse of the refugee protection system. A typical example of this was issuing deportation orders and detaining asylum-seekers who disclosed using fraud passports–to depart from home country and enter South Korea- while submitting refugee application form, or those who made applications under an illegal status. Prior to the enactment of the Law, it was hard to encounter cases in which a refugee applicant was detained for reasons of illegal status or usage of forged passport, in line with Article 31 of the Refugee Convention -“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees···.” The practice described above is a violation of Article 31 of the Refugee Convention and also has a potential for violating the principle of non-refoulement, taking into account the issuance of deportation order before refugee status determination procedure begins.

 

3. Disclosure of Innate Problems of the Law: Necessity of Revision

 

In the process of enactment of the law, many parts were modified from the initial draft. The establishment of refugee status determination procedure at the port of entry is one example. The initial draft set an upper limit on number of days for regular refugee status determination procedure at the port of entry; 4 months for the purpose of ID verification of the applicant. The intention behind the provision of the original bill was to improve lack of Refugee Status Determination Process at the part of entry while taking into account the special situation at border or port of entry. However, just before the passage of the law at the South Korean National Assembly’s plenary session, the relevant article was modified to the current version.

 

Under the current law, refugee applications at the port of entry are subject to a referral procedure, the final decision of which has to be made within 7 days from the application date. The purpose of the referral procedure is to decide whether the case will be referred to the regular refugee status determination procedure. There had been much dispute on the referral procedure even before the enforcement of the law as the policy does not stipulate where refugee applicants–who appeal to the administrative court regarding the referral decision– can stay until the case is closed. This is problematic as those refugee applicants cannot be admitted to the territory, repatriated to the countries of origin, detained in the immigration detention center, nor confined in the deportation room.

 

These worries became reality following the enforcement of the Refugee Law. Refugee applicants were detained at the deportation room without any legal grounds, deprived of the right to legal counsel and subject to treatments amounting to torture, while their appeal cases on the referral decision proceeded.

 

Incheon District Court of Korea recently ruled detention practice as such above is a violation of the Habeas Corpus law. Constitutional court of Korea ordered an interim measure granting access to legal counsel. Repatriating refugee status applicant without general refugee status determination procedure is a violation of the principle of non-refoulement under the Refugee Convention and detention without legal grounds is a violation of the International Covenant on Civil and Political Rights prohibiting arbitrary detention. Therefore, policy relating to refugee applications made at the port of entry has to be amended immediately.

 


4. Enforced but not Implemented 

 

Many articles of the law were not thoroughly enforced. With regard to procedure, the law stipulates that in the case of a refugee status applicant requesting the interview be recorded or videotaped, the Chief of an immigration office may not refuse the request. Since the enforcement of the Refugee Law one year ago, however, the Ministry of Justice has been refusing such requests for reasons of lack of facilities. The Refugee Law also stipulates that documents or other relevant information necessary for refugee status applications shall be placed at the port of entry. Nonetheless, these documents and information are provided only in the deportation room at the port of entry and the Ministry of Justice has refused to register refugee applications from those who have not expressed intention to apply for refugee status during admission interviews, let alone provide any information on the procedure.

 

With regards to treatment of refugees and refugee applicants, the law stipulates that the Ministry of Justice shall permit entry into the country of any spouse and minor children of recognized refugees in order to ensure family unification in practice. Despite the law, families of recognized refuges still face difficulties in obtaining visas for entrance into Korea. The law permits subsidies to refugee applicants for 6 month following the submission of the application. However, for 2014 budget, the Ministry of Justice secured only 343,980,000KRW (approximately 320,698USD) for the subsidies. Considering the living expense for one person –382,200KRW (357USD), a unreasonably low amount– and taking into account the number of refugee applicants in 2013 (1,574), this budget can be allocated to only 10% of the total refugee applicants, approximately around 150 persons. Therefore a huge number of refugee applicants in desperate need of subsidies were not able to receive the benefits. In addition, only 14% of the budget was spent as of late May due to passive execution of the expenses in the first half of 2014, which will result in unequal treatment between applicants who made applications in the first half and those who applied in the latter half of the year.

 

5. Better than None


Nevertheless, through the enforcement of the Refugee Law, some refugee status applicants who are eligible are now allowed to obtain work permit (although not many applicants would benefit from this as labor contract is to be submitted to the immigration office before the issuance of work permit), some of refugee applicants who face livelihood difficulties will be able to reside in the reception center (although there are still problems regarding this as the budget for establishment and management of the center is extremely high compared to the one for provision of subsidies and as the center is only open to those who make refugee applications within 6 months from the date of entry), and refugee applicants are allowed to request access to or obtain a copy of refugee interview report (although it takes one extra day to get an approval for such request as the interview usually finishes right before the office hour).

 

6. Conclusion


Lastly, I want to draw attention to the number of recognized refugees. Only five were granted refugee status at the first instance refugee status determination procedure by the Ministry of Justice in 2013 and the number fell into one as of May 2014. On the contrary, the number of humanitarian status recognition increased to 92 in May 2014 from 6 in 2012 and 31 in 2013. Based on these developments, one can only doubt that the Ministry of Justice is only trying to grant humanitarian status, which recognizes only the right to work, instead of actually trying to ensure the people the rights under the Refugee Convention.

 

Marking the one year of enforcement of the Refugee Law, the Ministry of Justice should give impetus to implementation of the Refugee Law as a way of implementation of the Refugee Convention, show its effort to resolve issues disclosed since the enforcement, and be more active in protecting refugees rather than being defensive due to concerns of misuse of the refugee system.


(written by Jong Chul Kim and translated by Emma Daae Kim)

 

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Posted by 공익법센터 어필 APIL

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