A Promise as a Right

November 5, 2019
Seongsoo Kim
Attorney at Law, Republic of Korea

Is a refugee entitled to the same disability benefits generally as Korean nationals based on the Refugee Convention Article 24 and the Refugee Act of Korea Articles 30 and 31, without requiring further individual legislation? This was the question the Busan District and High Courts of South Korea faced in Baloch Meer Balach Muhammad Zai v. Busan-Gwangyeogsi Sasang-gucheongjang (“Meer”). In this case, the courts grappled with whether refugees were entitled to disability benefits and how to define that right, making the first major decision on refugee rights in Korea.

The plaintiff in Meer was the son of a Pakistani national who fled from Baluchistan and was recognized as a refugee by the government of Republic of Korea in 2014.[1] After Meer entered Korea to join his father in 2015, he was recognized as a refugee as well.[2] As he suffered from encephalopathy, he was admitted to a public school for disabled children.[3] Owing to the disease, Meer required intermittent assistance by a caregiver to move around. His father applied to the municipal government to register Meer as a “disabled person,” which would, among other benefits, entitle him to a free caregiver to help him attend school and visit hospitals.[4] However, the municipal government denied the application, stating that the Act on Welfare of Persons with Disabilities did not include foreigners with F-2 visas, the visa given to refugees and their families as eligible persons for the registry to get the benefits stipulated in the Refugee Act of Korea.[5] Seeing this as unlawful withholding of benefits to which he was entitled, Meer challenged the decision in court.[6]

Korean Domestic Law

The relevant Korean laws in Meer were the Act on Welfare of Persons with Disabilities and the Refugee Act.

The Act on Welfare of Persons with Disabilities was enacted to promote social integration of persons with disabilities through improving welfare for them and encouraging their participation in various social areas. It clarified responsibilities of the national and local governments to ensure a decent life and the rights of persons with disabilities, advancing overall welfare measures in relation to the medical care, education, rehabilitation, and living environment. Article 32 of the Act provides that the person with a disability or their guardian must register the disability with a specified local official (“the Mayor of the Special Self-Governing City, the Governor of the Special Self-Governing Province, or the head of a Si/Gun/Gu”) and if the registration meets the standards in Article 2 of the Act, they shall be issued a disability registration certification.[7]

Before the Act was amended by Act No. 11240, Jan. 26, 2012, it covered only Korean nationals. By the amendment, the benefits of the Act were extended to a limited range of legal foreigners that included foreigners with Korean ethnic origin, foreigners with permanent residence (F-5 visa) and lastly spouses of Korean citizens.[8]

The Korean Refugee Act provides that recognized refugees will be treated in accordance with the Refugee Convention.[9] One way the Refugee Act specifically provides for this is by stating that recognized refugees will be covered by social security in the same manner as Korean citizens.[10] A refugee will be entitled to the package of rights in Articles 7-15 of the Refugee Act upon request.[11]

There was no question that if any Korean citizen with a disability under the Article 2 of the Act on Welfare of Persons with Disabilities was denied the registry of it, he or she could challenge the local officer’s denial in the courtroom and enforce the registry judicially. The question here was that a recognized refugee with a disability could do the same as Korean citizens, even though refugees were not included in the list of eligible foreigners under Article 32-2(1) of the Act on Welfare of Persons with Disabilities.

The Courts’ Decisions

The first instance court denied Meer’s claim.[12] The Busan District Court reasoned that since the social security benefits were not constitutional rights, but statutory rights, it was at the government’s discretion to define the plaintiff’s eligibility. It applied the same logic to the Act on Welfare of Persons with Disabilities, and it determined that it was clear that Article 32-2(1) of the Act did not include refugees as persons eligible for benefits. Therefore, the plaintiff was treated the same as any other foreigner outside of the category defined in the Article 32-2(1) of the Act, was not eligible for the registry as a disabled person, and could not enjoy any benefits thereof.

However, the appellate court overturned the decision and sustained the plaintiff’s claim.[13] The Busan High Court held that Article 24(1) of the Refugee Convention[14] and Article 31 of the Refugee Act of Korea[15] entitled refugees to the same social security benefits as Korean citizens without the need for further legislation or reciprocity with foreign countries.[16] In particular, the wording of Article 31 of the Refugee Act explicitly defined its binding character and stated that municipal governments and administrative agencies did not have the discretion to interpret it otherwise. Though the wording of Refugee Act Article 32 was slightly different from that of Article 31, the difference did not indicate a less binding effect for Article 32. Article 32 was just meant to make the eligibility even more explicit, considering the National Basic Living Security Act[17] functioning as a basic legal framework for public aid. Furthermore, though the category defined in Article 32-2(1) of the Act on Welfare of Persons with Disabilities was interpreted as exhaustive, it did not preclude using the defined rights in Refugee Act Article 31, which superseded any other legislation that fell under the umbrella of the Framework Act on Social Security.[18]

Though the defendant appealed, the Supreme Court of Korea upheld the appellate court’s judgment.[19] It is therefore the appellate court’s decision that is now the interpretation on disability rights for refugees in South Korea.

Promise as a Right

The Republic of Korea became the first Asian country to have a standalone domestic law to protect refugees by enacting the Refugee Act in 2013.[20] The Act established the definition of a refugee and the process of recognition in line with the Refugee Convention. It also enumerated the benefits to which recognized refugees are entitled. Until recently, most of the refugee law issues in Korean courts were related to the interpretation of the definition of “refugee,” finding relevant facts, and applying the principle of benefit of the doubt appropriately. These cases were focused on issues surrounding the definition of a refugee. Meer, however was related to the benefits of a refugee after recognition. Specifically, it dealt with the issue of judicial enforceability of social security benefits enumerated in the Refugee Act. It was the first case of its kind in Korea.[21] Moreover, due to the expanding domestic social security program, in the coming years this case’s outcome will have an important impact on the lives of the growing number of recognized refugees in Korea.

In the past, the Korean judiciary has tended to be quite passive in recognizing “social fundamental rights”[22] as “rights.” Authoritative constitutional textbooks emphasized social fundamental rights as “programmatic,” “abstract” or “incomplete” in character, which was contrary to civil and political rights.[23] The Busan District Court’s reasoning in Meer appears to have been heavily influenced by these traditional approaches. However, the essential issue of this case was not whether the social security rights for disabled persons were either “constitutional and concrete” or “statutory and programmatic.” Instead, the real issue was whether social security rights, which had already been statutory rights for Korean nationals along with a restricted category of foreigners, should be interpreted to be granted to refugees under the Refugee Act in accordance with the international norm of the Refugee Convention. On this point, the Busan District Court can be justifiably criticized for not paying sufficient attention to the wording, object, and purpose of the Refugee Act. The plaintiff’s counsel emphasized the object and purpose of the Act by referring to the legislative drafting history at length in their appellate brief. In the end, the Busan High Court rectified the District Court’s error in law without citing any of the legislative drafting history. It seems that the High Court believed the wording of the Act was indeed quite clear and it was not necessary to refer to the legislative history in confirming the legislative intent.

On the other hand, the High Court’s understanding of Article 24 of the Refugee Convention was somewhat incomplete and inaccurate. The benefits for the disabled person in this case would be better categorized as a sort of public relief or assistance under the Refugee Convention Article 23 rather than social security under Article 24(1). Though the Refugee Convention does not define the forms of public relief in Article 23, it can be described as distinct from social security because it is not directly related to the right to work and does not depend on a contributory scheme.[24] In that sense, the benefits granted by the domestic law, the Act on Welfare of Persons with Disabilities, can be seen as a form of public relief or assistance as they are not related to any contribution by the beneficiary.

Usually, the distinction between public relief and social security is of no practical significance in applying the Refugee Convention, since refugees lawfully staying in a country are entitled to national treatment under both Articles 23 and 24.[25] Therefore, it could be said that the confusion or inaccuracy by the High Court’s reference to Article 24 rather than Article 23 made no difference to their conclusion. However, Article 24 of the Refugee Convention includes a few significant restrictions on the refugee’s social security benefits. One of them is that the host country can lawfully exclude refugees from certain special arrangements that are entirely funded by the state for its own citizens.[26] So, in light of Article 24 of the Refugee Convention, the Korean government could restrict the benefits for disabled persons through domestic legislation on the ground that the benefits are wholly funded by the national or municipal government and are not related to any contribution by the beneficiary. Then if the court found that the Act on Welfare of Persons with Disabilities excluded refugees from the intended beneficiaries, Article 24 of the Refugee Convention would not be an obstacle to that exclusion. This means that Meer could be determined solely based on an interpretation of domestic law, while ignoring the international norm of Refugee Convention Article 23.

With respect to the interpretation of Korean domestic law, however, the distinction between public relief and social security appears to be of no significance. Article 3 of the Framework Act on Social Security defines social security as encompassing “social insurance, public aid, and social welfare services that guarantee income and services necessary to protect all citizens from social harms, such as childbirth, nurturing children, unemployment, ageing, disability, illness, poverty, and death, and to improve their quality of life.”[27] This broad notion of social security in domestic law might be one of the reasons the High Court looked solely at Article 24 of the Refugee Convention and overlooked Article 23.

While this case was pending in the Supreme Court, the Act on Welfare of Persons with Disabilities was revised to add refugees to the eligible category of beneficiaries under Article 32-2,[28] effectively solving the problem posed in Meer. Nonetheless, this case will stand as an overarching precedent which guarantees a host of different social security and public relief benefits to recognized refugees in Korea on the same footing as Korean nationals without having to worry about the negligence or capriciousness of various administrative agencies. It confirmed the Korean government’s promise, enshrined in the Refugee Act, to have social security and public relief benefits as enforceable rights for every refugee in Korea.

[1] Busan District Court [Dist. Ct.], 2017Gu-Hab20683, June 9, 2017 (S. Kor.)

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Jangaein Bogjibeob [Act on Welfare of Persons with Disabilities], Act No. 4179, Dec. 30, 1989, amended by Act No. 8367, Apr. 11, 2007, art. 32 (S. Kor.).

[8] Id. at art. 32-2.

[9] Nanminbeob [Refugee Act], Act No. 12421, Mar. 18, 2014, art. 30 (S. Kor.).

[10] Id. at art. 31.

[11] Id. at art. 32.

[12] Busan District Court [Dist. Ct.], 2017Gu-Hab20683, June 9, 2017 (S. Kor.)

[13] Busan High Court [Busan High Ct.], 2017Nu22336, Oct. 27, 2017 (S. Kor.).

[14] Convention Relating to the Status of Refugees art. 24(1), July 28, 1951, 189 U.N.T.S. 152.

[15] Nanminbeob [Refugee Act], Act No. 12421, Mar. 18, 2014, art. 31 (S. Kor.).

[16] Busan High Court [Busan High Ct.], 2017Nu22336, Oct. 27, 2017 (S. Kor.).

[17] Googmin Gicho Saenghwal Bojangbeob [National Basic Living Security Act], Act No. 6024, Sept. 7, 1999 (S. Kor.).

[18] Sahoe Bojang Gibonbeob [Framework Act on Social Security], Act No. 5134, Dec. 30, 1995 (S. Kor.).

[19] Supreme Court [S. Ct.], 2017Du69625, Feb. 28, 2018 (S. Kor.)

[20] Korea Immigration Service, Refugee Status Determination Procedures in Korea – Handbook for Recognized Refugees, Humanitarian Status Holders, and Refugee Status Applicants 4 (2015).

[21] 강혜민, 부산고법난민 장애인도 국민과 동일한 복지 받을 있다, BeMinor (Feb. 11, 2017, 5:00 PM), http://beminor.com/detail.php?number=11541.

[22] Generally, Korean constitutional jurisprudence calls the rights or freedoms guaranteed by the Constitution “Gibon-gwon,” which translates into “fundamental rights” or “basic rights,” and categorizes them into civil, political, social, economic “Gibon-gwon,” and so forth.

[23] Professor Young Huh critically summarized the traditional approaches in his textbook. Young Huh, Korean Constitutional Law 578 (4th enlarged ed., 2018).

[24] James C. Hathaway, The Rights of Refugees under International Law 811 (2005).

[25] Id.

[26] Id. at 780.

[27] Sahoe Bojang Gibonbeob [Framework Act on Social Security], Act No. 5134, Dec. 30, 1995, art. 3 (S. Kor.).

[28] Amended by Act No. 15270, Dec. 19, 2017 (S. Kor.).

Suggested Citation: Seongsoo Kim, A Promise as a Right, RefLaw (November 5, 2019), http://www.rdxindia.xyz/reflaw/a-promise-as-a-right/.


  • Haiden Norder Jay Posted November 20, 2019 at 1:47 pm

    interesting topic. great article.

Submit A Comment

Your email address will not be published.

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>