The Republic of Korea became a signatory of the Refugee Convention in 1992, shortly thereafter inserting just a few articles into its domestic immigration laws to adhere to the required procedures of refugee recognition under the Convention. By 2008, applications for refugee status had not exceeded 2,000, and the number of recognized refugees remained around 100. While it was undeniable that Korea had made steady progress in refugee protection, the pace was deemed unsatisfactory and public criticism was common. In 2012, the South Korean parliament passed Law No. 11298 of 2012, Refugee Act [hereinafter “Refugee Act”], which went into effect in 2013, making the Republic of Korea the first Asian country to have an independent law for refugee protection.
Principal Changes in the Law
Accessibility to RSD procedure at the air/sea port
Article 6 of the Refugee Act expressly allows asylum seekers to apply for refugee recognition at the air/sea port. Before the change, the Ministry of Justice insisted that the refugee application must be submitted at the regional immigration offices, so the application was possible only after the alien was admitted through immigration control at the air/sea port. Article 6 has enhanced accessibility to RSD procedures to aliens who arrive in Korea without appropriate travel documents.
Shared responsibility and transparency in procedure
Article 9 declares that it is the responsibility of the immigration officer to collect information favorable to the applicant, which is in line with paragraph 196 of the UNHCR Handbook. Article 12 guarantees the applicant’s right of legal assistance and Article 13 allows the applicant to be accompanied by someone reliable of his/her own choice during the interview. Article 14 and 15 demands the Ministry of Justice to offer good interpretation or translation for the interview. In addition, Article 16 stipulates the disclosure of transcripts of interviews to the applicants.
Benefits for refugees
The Refugee Act guarantees the same treatment to recognized refugees as that enumerated under the Refugee Convention (Article 30). Furthermore, refugees shall enjoy the same basic social security benefits as Korean nationals including, inter alia, housing, medical and educational benefits (Article 31-33). The law also stipulates the principle of family reunion (Article 37), providing entry for the spouse and minor children of a recognized refugee. Additionally, the new law has expanded some benefits to refugee applicants who are not yet formally recognized; applicants under RSD processing shall enjoy social security benefits, including minimum level housing, medical support, and education, as well as permission to seek employment 6 months after the date of application (Article 40~44).
These benefits, however, are not available to the persons who are granted humanitarian stay. Humanitarian status holders may only financially sustain themselves through employment (Article 39). Even before the new law was enacted, a court found that the Korean government could not forbid the employment of a refugee applicant who was not a beneficiary of social security; consequently, detention to expel him for reason of illegal employment had to be revoked (Seoul Administrative Court delivered on 2013. 10. 10. 2013 guhab 13617). The court held that it was contrary to the constitutional guarantee of human dignity and the right of decent life not to allow refugee applicants any other option but to rely on the charities of NGOs by forbidding their employment without any social security benefits.
Promises to be Fulfilled
Inaccurate incorporation of the Refugee Convention
The current Korean translation for ‘well-founded fear’ implies the following: “severely frightened mental status, supported by sufficient grounds.” There is no doubt that, regardless of the translation, the definition provided by the Refugee Convention shall be applied and understood as an international norm. Still, refugee lawyers worry that poor translation may lead to deviation from international standards.
The former ‘Refugee Council,’ which dealt with petitions for review against immigration officers’ initial decisions, was transformed into the ‘Refugee Committee’ by the Act. While the number of members has increased from 10 to 15 and the staff has expanded from 3 to 7, the change remains nominal; the Committee is not required to hear every case from petitioners orally, and its decision are not binding to the Minister of Justice.
Refugee Housing Facility
The social controversy surrounding newly built refugee housing facilities is also noteworthy. The Ministry of Justice believed that it was necessary to build a new housing facility for refugees and asylum seekers. Initially, the problem was the facility’s location – the building site of the Ministry’s choice is located on Youngjong Island, which holds Incheon International Airport, and is a site, quite remote from residential areas and has limited accessibility to neighboring cities. Critics have said that the location symbolized Korean government’s reluctance to integrate refugees into society.
When the construction was completed, public anxiety erupted from neighboring residents. While the neighbors’ residences are quite far from the facility, they worried about the possibility of deteriorating security and devaluation of their assets. Though the residents’ protests calmed as time went by, the Korean government learned to be cautious about the latent xenophobic atmosphere among the Korean public, which was largely unnoticed during the legislation.
Difficulties on the frontline
After the new law went into effect, the Ministry of Justice expanded the pool of interpreters significantly and organized educational programs for them in cooperation with pro bono groups. In spite of the government’s efforts, it is still criticized that the pool of interpreters is not large enough. As a result, the applicants are often being required to bring their own interpreters. In areas other than Seoul and its neighboring cities, it is far more difficult to find a qualified interpreter for uncommon Asian and African languages, while there has been an increase of refugees speaking those languages.
Also, refugee lawyers complain that immigration officers in charge of initial interviews are often unfriendly toward refugee applicants and their lawyers. They are either poorly trained or insensitive, and ignorant of refugee applicants’ procedural rights guaranteed by the new law. The complaints include frequent refusals of recording of interviews on the applicant’s demand, which is required by the new law.
Recent Judicial Decision on Expulsion at the Air/Sea Port
After the new law came into effect, the hottest dispute thus far erupted with regard to application at the air/sea port. While Article 6 of the Refugee Act allows applications at the air/sea port, the presidential decree for its implementation permits the Minister of Justice to deny the ordinary RSD procedure to manifestly ill-founded applicants (Article 5.1.7), persons dangerous to the security of Korea and its social order (Article 5.1.1), persons who cannot be identified (Article 5.1.2), applicants with false documents (Article 5.1.3), persons from a safe country (Article 5.1.4), repetitive applicants (Article 5.1.5), and persons who fall under the exclusion clause of the Refugee Convention (Article 1F) (Article 5.1.6).
In some cases, the immigration officer broadly relied on the clause at the air/sea port and denied the RSD procedure to the applicant, who was believed to either have false travel documents or to have lied about his or her genuine purpose of entry. Anyone who was denied the RSD procedure must remain at the strictly restricted area in the air/sea port unless he or she agreed to leave the country. The conditions of detention were deplorable. For instance, it has been cited that no other food, other than chicken burgers, was offered during the de facto ‘detention’.
With the help of UNHCR and refugee lawyers, an applicant filed a suit to be admitted and referred to full RSD procedure in Incheon District Court, whose jurisdiction includes Incheon International Airport. On May 16, 2014, the court delivered its decision (2014guhab30385), revoking the immigration officer’s refusal of referral for RSD procedure and rejected every contention from the Ministry of Justice, which insisted that the denial could not even be challenged. The court made it clear that Article 5, Section 1 of the presidential decree of the Refugee Act, which lists the grounds for refusal of referral, should be strictly construed and it must apply only to the applicants whose claims could not be sustained on plain, formal grounds. The immigration officer could not deny the RSD procedure with negative evaluation on the substantial points of a refugee claim, as the evaluation was not and could not be based on the objective examination, but was just based on subjective speculation prior to the RSD procedure. After the decision, the Korean government admitted the applicant and referred him to the full, ordinary RSD procedure.
The above cases and observations show the current tension between the new law and the prolonged poor past practices of refugee protection in Korea. The tension was not unexpected at the time of the enactment of the new act, as prior poor practices in the realm of refugee protection were undoubtedly the reasons for this recent legislation. The new act was created with the purpose of transforming current immigration practices and lifting refugee protection to international standards. We need more time to see if the promises of the new Refugee Act will be fulfilled.