Evaluation of the First Year Refugee Law Enforcement : Analysis and Position Paper!

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Table of Contents!!!

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Advocates for Public Interest Law

www.apil.or.kr #505, 163, Anguk dong, Jongno gu, Seoul, Korea, 110-240

T. +82-2-3478-0529, F. +82-2-3478-0529!

I. Introductory Remarks! 3!

II. The Refugee Status Determination Procedure! 5!

1. The issue of refugee status application procedure at port of entry ! 5!

2. Illegalities in the Refugee Status Determination process (refusal to accept applications, problems in pre-interviews, and detention of applicants) ! 9!

3. Failure to record or videotape of the interview process ! 13!

4. Delays in refugee status determination procedure ! 15!

5. Problems in viewing and obtaining copies of relevant documents! 16!

6. Issues surrounding resettlement ! 18!

7. Cooperation with the UNHCR ! 19!

III. Treatment of Refugees! 21!

1. Family Unity Principle! 21!

2. Assistance with Living Expenses and Work Permits for Refugee Status Applicants! 22!

3. Treatment of Refugee Minors ! 24!

4. Inadequate Accommodation of Humanitarian Status Holders ! 26!

5. Refugee assistance facilities ! 27!

6. Long-Term Detention of Refugee Status Applicants ! 29!

IV. Other Topics! 31!

1. The Issue of Transferring Jurisdiction to Regional Courts ! 31!

2. Problems in Supplementary Provisions ! 32!

Ⅴ. Conclusion – Comprehensive Recommendations! 33

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Table of Contents

!Evaluation of the First Year Refugee Law Enforcement!

: Analysis and Position Paper! !Advocates for Public Interest Law (APIL) !1!

I. Introductory Remarks!!

It has been a year since the Korean Refugee Act came into effect on July 1, 2013; in East Asia, it is the first independent law established to ensure a stricter compliance with the Refugee Convention. In fact, the very legislation and enforcement of the Refugee Act, accomplished only after a series of disputes and compromises, is a significant accomplishment in and of itself. We also recognize that the Ministry of Justice has put forth a multilateral effort into improving the framework for refugees in accordance with the legislative intent of the Refugee Act. Some examples of commendable changes are as follows: placing the directives on refugee status application at port of entry, enabling the acceptance of application inside the deportation room; founding ‘Guidelines for Transferring Refugee Status Applications,’ preventing the refusal of applications filed at an office that has no jurisdiction over the applicant’s place of residency; creating guidelines that ensure right to legal counsel in the deportation room; and amending the ‘Operational Regulations on Temporary Release’ to permit temporary release of refugees who won the first trial in refugee litigation in principle.!!Despite these improvements in refugee administration following the enforcement of

the Refugee Act, there remains a considerable amount of untouched issues, since the forward-looking tenets of the Refugee Act have yet to be successfully implemented in practice. Troubling statistics, including a decrease in recognized refugee cases compared to 2013, indicate that some aspects have worsened since the implementation. The fact that during the first half of 2014, only one person was recognized as a refugee through the initial evaluation by the Ministry of Justice is telling. Furthermore, there are many problems inherent in the determination procedure, from refugee status applications at port of entry to interviews and lack of due process of the Refugee Status Determination

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Advocates for Public Interest Law (APIL) is a non-profit public interest lawyer’s organization that seeks 1

to defend the human rights of vulnerable migrants such as refugees, human trafficking victims, stateless persons, foreigners detained long-term, and victims of human rights violations committed by Korean corporations overseas. Lawyers Jong-Chul Kim, Shin-Young Chung, Se-Jin Kim, and Il Lee are currently working at APIL.

procedure, not to mention the loopholes in refugee resettlement and cooperation with UNHCR. Moreover, there are serious problems concerning the treatment of refugees, including the provision of living expenses and work permits, the Family Unity Principle, treatment of refugee minors, treatment of humanitarian status holders, administration of refugee assistance facilities, and long-term detention of refugee status applicants. !!Therefore, as we celebrate the first anniversary of the enforcement of Refugee Act,

APIL attempts to identify problems concerning the two main pillars of the Act, namely the determination procedure and the treatment of refugees, and to suggest ways to progress. 2

For each topic, this report proceeds in three sections: ‘issues’ concerning the interpretation, implementation, and the content of the Refugee Act; ‘example cases’ from real-life that illustrate the issues discussed; and ‘recommendations’ for desirable outcomes. While the first two sections serve to inform, the last demands concrete changes 3

from the government. Since many problems in refugee administration may occur from the fact that the intent of the law, despite its progressive provisions, is not properly carried out in practice, or because legal provisions leave much to authorities’ discretion, part of our ‘recommendations’ demand not only changes in administrative practice but also revisions to the law.!!!!!!!!!!!!

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The importance of each issue regarding the content of the Refugee Act itself, implementation of the 2

provisions, and interpretation of the provisions might be varied, but we tried to list all issues that are necessary to mention. The order in which these issues are mentioned does not reflect their relative importance in terms of urgency and seriousness.

Although specific details like date and other excludable information have been left out for the sake of 3

confidentiality, these are all real-life cases.

II. The Refugee Status Determination Procedure!

1. The issue of refugee status application procedure at port of entry !

1) Problems in Enforcement, Interpretation and Content of the Law!!Article 6 (Applications at the Port of Entry)!(1) An alien who wants to apply for refugee status at the time of immigration inspection

must submit the refugee status application form to the respective Chief of local Immigration Office or Head of Government Office dealing with Foreigners which have jurisdiction over the port of entry in accordance with the Immigration Control Act. <Revised March 18, 2014>!

(2) Chief of local Immigration Office or Head of Government Office dealing with Foreigners may restrict a person who submitted a refugee status application form at the port of entry in accordance with paragraph 1 to stay at a designated location within the port of entry for up to seven days. <Revised March 18, 2014> !

(3) The Minister of Justice shall decide within seven days of the submission of a refugee status application whether to refer the application to the refugee status determination procedure, but if the Minister of Justice fails to decide within this period, the applicant's entry into the country shall be permitted.!

(4) A refugee status applicant at the port of entry shall be provided with basic food, accommodation and clothing during the time period specified under paragraph 2, in accordance with the Presidential Decree.!

(5) Details necessary for refugee status determination procedures at the port of entry other than those specified by paragraphs 1 to 4 shall be stipulated by the Presidential Decree.!!

Article 7 (Notice of Relevant Information on Refugee Status Applications)!(1) Chief of local Immigration Office or Head of Government Office dealing with

Foreigners shall place documents necessary for refugee status applications at the local Immigration Office (hereinafter “the Office”), Government Office dealing with Foreigners((hereinafter “the Office for Foreigners”) , or port of entry within their jurisdiction and provide public notice (including notice by electronic means, such as an online notice) on the procedure of an application pursuant to this Act, on the rights of refugee status applicants and other relevant information. <Revised on March 18, 2014> !

(2) Details of the placement of the documents and provision of notice pursuant to paragraph 1 shall be stipulated by the Ordinance of the Ministry of Justice.!

!Article 6 of the Refugee Act is legislated as a reconciliatory gesture to recognize past

refusals to accept refugee status applications of all those were denied entry on account of the groundless interpretation that the area before Immigration Control is not the territory of the Republic of Korea. Although the mechanism became more complicated as the

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Ministry of Justice added a pre-assessment procedure days before passing the bill (requiring the evaluation of submission of a refugee status application whether to refer the application to the refugee status determination procedure; Clause 3), all applicants who have the potential to be refugees should now be admitted as a principle, without resorting to the usual discretionary power to refuse foreign entries. !4

!<Example Cases>!!- A refugee applicant, A, submitted the refugee status application when he arrived at the

airport, but was denied entry. He was subsequently transferred to the deportation waiting room instead of the waiting room for refugee status determination. !

- When B, a refugee applicant, arrived at the airport, she did not know when to apply since no notice of the refugee status application procedure was posted. She thus tried to go through immigration first, but was denied entry. Then, she submitted the refugee status application to a residing supervisor in the deportation room and the immigration control officer who checks the deportation room regularly; her application was refused on the basis that the refugee status application after the entry had been denied was unacceptable. !5

- C, a refugee applicant, informed officers that she was pregnant, but was given only chicken burgers and coke for meals like other detainees. Unable to endure the long process of litigation after having been detained in the deportation room for about a month, she decided to return to her home country. !

- After D, refugee applicant, received notice of non-referral of the refugee status application to the refugee status determination procedure, he was detained in the deportation room for five months before he could enter Korea through litigation.!

- E, a refugee applicant, was almost dragged out of the deportation room by airline company employees, barely escaping deportation by grabbing on to a wooden bed and refusing to board the plane.!

!However, practically speaking, there is no ‘visa for refugee status application’ in

Korea; those entering the country with the purpose of applying for refugee status must have a visa different from their purpose of entry, and since there is no notice of refugee application requirements before reaching Immigration Control, it is impossible for the refugees – who do not fully understand the application procedure in Korea – to receive a proper pre-assessment in ‘the waiting room for refugee status determination’ (Clause 2,

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In fact, there was a refugee status application received at a seaport in 2013. Thus, ‘refugee status 4

application at port of entry’ includes both airports and seaports.

This aspect is known to have been revised by a new guideline, so refugee status applications are now 5

supposed to be accepted at deportation waiting rooms.

Refugee Act). Instead, they are transferred to the deportation room after being denied 6

entry. Inside the isolated deportation room, refugee status applicants go through pre-assessment with no right to legal counsel and procedural rights that are less adequate than those given in the regular refugee interviews. Even worse, if applicants receive the ‘notice of non-referral of the refugee status application,’ they have no choice but to wait for litigation results while being detained in the deportation room, unless they choose 7

return to risk persecution by returning home.!!Since the deportation room, an accommodation facility under the control of the

Chief of the Immigration Office at the Incheon International Airport, is a detention center operating for administrative purposes without any legal grounds, there is a clear violation of the right to liberty. Also, since the room was built for short-term detention, there are serious problems: meals and bedding are terrible, there are no means of communication other than a public telephone that only accepts an expensive phone card, contacting  anyone  other   than attorneys is strictly prohibited, and detainees have to endure racist insults, ignorance, and criminal-like treatment. This is partly because private service contract workers employed by the Incheon International Airport Management Council, and not government officials, are in charge of security with no prior education on refugees. During the deportation process, some of these workers physically subject detained refugees to forced deportation. Once refugee status applicants receive the notice of non-referral of the refugee status application, they usually cannot stand such poor conditions and choose to return home, in effect being deported without a proper refugee status determination procedure. Considering many such cases could have been genuine refugees, this situation can be described as a ‘Rejection at the Border,’ which is prohibited by the Principle of Non-Refoulement (Article 33 of the 1951 Refugee Convention). !!

2) Recommendations!!Refugee applications at port of entry face a series of problems, including a conflict of

legal interests in the immigration administrative process, and inhumane conditions of the deportation room. These problems arise because there is no legitimate legal ground for

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The Immigration Office had interpreted the law to mean that they have the authority to send applicants 6

to the ‘refugee status determination waiting room,’ sending a letter of support for deportation to transportation companies and forcing applicants to enter the deportation room instead by principle.

When the applicant receives the ‘notice of non-referral of the refugee status application’, the case can 7

be filed to the Administrative Court to demand revocation of the non-referral of the refugee status application.

operating the deportation room; although refugees may stay in the waiting room during the pre-assessment period for up to seven days according to the new Refugee Act, there is no stipulation of where they can stay during the appeals process; from the narrow-minded understanding and practice of the government authorities that assume all refugee status applicants to be bogus claimants. In order to deal with these issues, revisions to the Refugee Act to its form without pre-assessment clauses, or revisions made by social agreements, are needed on a long-term basis.!!However, before revisions, it is required that ①the pre-assessment (Article 6 of the

Refugee Act) is operated in accordance with its original purpose. In other words, since it is clearly impossible to determine whether the applicant is refugee through the short pre-assessment and procedural guarantees are seriously inadequate, it is necessary to lower the threshold of the referral of the refugee status application by simply determining whether it is a clearly unfounded application in the pre-assessment. The Immigration Office needs to guarantee refugee entry into the country and subsequent opportunity to complete the formal refugee status determination process, instead of operating pre-assessment as a simplified version of the refugee status determination procedure. Also, during this period, ②refugee status applicants should be guaranteed to have right to legal counsel, in light of the uniqueness of refugee cases and of the fact that personal

freedom is restricted, and ③applicants should be given healthy food other than chicken burgers and coke through consultation with the Airline Management Council and administrative guidance. ④Further, a phone line for incoming calls should be installed as soon as possible, as detainees are isolated and it is not possible to use the telephone freely without buying an expensive phone card.!!Presently, refugee applicants who receive the illegitimate notice of non-referral but

are genuine refugees may or may not have the opportunity to receive a formal refugee status determination; put frankly, all depends on ‘how long they can endure the terrible living conditions in the hopeless deportation room.’ Respecting the original legislative intent of this system, the guarantee of opportunity to receive a formal determination and appeals process should be integrated into the formal procedure of refugee status determination in order to heed the Principle of Non-Refoulement. !!

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2. Illegalities in the Refugee Status Determination process (refusal to accept applications, problems in pre-interviews, and detention of applicants) !

1) Problems in Enforcement, Interpretation, and the Content of the Law !!Article 5 (Refugee Status Application)!(1) An alien in the territory of the Republic of Korea who wishes to attain refugee status

may apply for refugee status to the Minister of Justice. To this end the alien must submit his/her refugee status application to the Chief of local Immigration Office or Government Office dealing with Foreigners.<Revised March 18, 2014>!

(2) When applying pursuant to paragraph 1, the applicant must provide the documents listed in each subparagraph below: !

! 1. Passport or Alien Registration Card or, if neither is available, a statement !! explaining the reasons; and!! 2. If available, supplementary information, including any documents, for reference ! in the determination of refugee status.!(3) The refugee status application shall be submitted in writing. If an applicant cannot fill

out the application form due to illiteracy or disability, the official who receives the application shall fill out the form on behalf of the applicant and either sign or put his/her name and seal, along with the applicant’s signature or name and seal.!

(4) An immigration officer shall give full support and aid to any person who requests information on refugee status applications or expresses the intent to apply for refugee status.!

(5) The Minister of Justice shall issue a certificate of receipt to a refugee status applicant immediately after his/her application is received.!

(6) A refugee status applicant may stay in the Republic of Korea until the determination of his/her refugee status becomes final (and, if an administrative appeal or litigation concerning the denial of his/her refugee status is ongoing, until the proceeding concludes).!

(7) Specific methods and procedures for refugee status applications, other than those specified in paragraphs 1 to 6, shall be stipulated by the Ordinance of the Ministry of Justice.!

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<Example Cases>!- A refugee applicant, A, submitted refugee status application at the Seoul Immigration

Office, but her application was denied because it was not written in English. The officer denied the application on the grounds that applications that are not written in Korean or English are unacceptable and cannot be translated by the Immigration Office; she was advised to attach a translated version with the help of refugee organizations. !

- A refugee applicant, B, submitted the refugee status application at the Seoul Immigration Office but her application was denied on the account that it is acceptable only in offices that have jurisdiction over the applicant’s registered place of sojourn. !8

- A refugee applicant, C, who was detained in the Immigration Detention Center, expressed his intention to apply for refugee status. However, the officer in charge of applicants did not give him the application form. A few days later, he gave C a blank paper, instead of an official form, asking him to write “anything he wanted.” C received the proper form only after attorney’s intervention. !

- A refugee applicant, D, whose period of stay had expired, was a refugee sur place. When he went to the Immigration Office to submit the refugee status application, he was immediately arrested and was detained under deportation order and detention order. !

!!Article 5 of the Refugee Act specifies the procedure of refugee status application.

During the procedure, authorities are not entitled to refuse incoming applications (Clauses 1 and 5); have a duty to provide substantial assistance (Clause 3); and until the final determination of refugee status, must allow the applicant to stay in Korea without enforcing the deportation order (clause 6). !!

However, the refusal of application does occur in practice despite various forms of refugee status application. This is the foremost grievance of refugee status applicants, 9

since the rejection not only blockades the very commencement of refugee status determination procedure, but also delays various qualifications dates related to refugee status (i.e. ①qualification to apply for change of qualification for sojourn into G-1 visa, ②qualification to apply for support for living expenses ③qualification to apply for work permit ④qualification to apply for admission to Refugee Assistance Facility, etc.). Thus, for the refugee status applicants who are in subordinate status, getting through the initial filing – not a step in the examination process but merely a stage in the ‘receipt of

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This aspect seems to have been resolved by the enactment of ‘transfer of notification of refugee status 8

application,’ which allows the fling of application without regards to the current place of residence.

Most applications do end up getting submitted in the end, so this could be seen as a delay in receipt. 9

But the fact that the officer receiving the documents may delay the process as he wants is extremely troubling, not to mention the severe disadvantages the applicant face because of delays in submission.

documents’ – is itself a big challenge. These commonly occurring cases of refusing applications are illegal, and should be revoked through administrative litigation. Applicants detained in the immigration detention center are more frequently rejected, probably owing to prejudice that ① the so-called ‘illegal aliens’ apply for refugee status for the purpose of extending their stay and ② if the application is received, it would be an administrative burden since long-term detention becomes necessary. The pre-assessment (an interview in which the officer in charge tries to discourage the applicant from submitting the application rather than helping them complete the application) that was often a part of the refugee status application process prior to the implementation of the Refugee Act still occurs frequently for detained refugee applicants.!!The detention of refugee status applicants is another serious problem. Article 33 of

the Refugee Convention, Paragraph 1 of Article 3 of the Convention against Torture, Article 7 of the International Covenant on Civil and Political Rights, and customary international law all stipulate the Principle of Non-Refoulement, which works as a compulsory provision that prohibits all governmental measures to deport a refugee into an area where the person may be subjected to persecution. Therefore, even if an undocumented person applies for a refugee status, if the person may be persecuted if deported, the government should promptly examine whether his claim is true or false. Subsequently, if the person is a refugee, he should be recognized accordingly; if not, deportation order and detention order may be issued. In practice, however, based on a narrow interpretation of the Principle of Non-Refoulement merely as a prohibition of ‘execution of deportation order’ and the prejudgment that all undocumented people are abusive applicants, authorities issue deportation order and detention order without any prior examination of legality and necessity of detention, holding the refugee status applicants in detention. Such administrative disposition is illegal, and should be revoked. The problem of long-term detention of refugee status applicants arises not only from the unconstitutionality of Clause 1, Article 63 of the Immigration Control Act that does not stipulate periodic judicial review on detention, but also from the illegal issue of detention order by administrative authority without any judicial intervention; it is hard to imagine any public interest that would be advanced by compulsory detention of refugee status applicants under the pretext of securing the execution of deportation order, which itself is not executed promptly. !!On a related note, the government issued deportation and detention orders in 2013

to all foreigners whose undocumented period of stay has exceeded one year, without

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considering any lower-level sanctions such as a monetary penalty. Aside from its own illegality, this measure caused a serious problem of discouraging even legitimate refugee status applicants by sending a message that ‘those who apply for refuge status will be detained’ to undocumented aliens. !10

!2) Recommendations !!

According to Article 5 of the Refugee Act, an immigration officer has no authority to refuse a refugee status application, not to mention having the obligation to help completing and submitting the application. Therefore, any interview prior to receipt that might lead to a delay in the determination process should be avoided. In principle, applications not written in Korean or English should also be received and the government should not shift the burden of translation onto refugee aid organizations. Officers at the Immigration Detention Centers should provide refugee status application form promptly upon request and proper aid to submit the application form. They should be trained regarding refugee related matters, as it requires professional knowledge. !!Meanwhile, although the Refugee Convention prohibits Korea’s current practice of

detaining refugee status applicants whose legal stay has expired for a certain period, there seems to be no progress on this front. The basis of the government’s argument is not ‘the necessity to realize public interests’ but a mere administrative excuse (they ‘cannot process refugee status determination promptly because of accumulated cases and shortage of officers’). If it is possible to carry out the refugee status determination promptly (which is the rightful duty of the government), there would be no reason to detain applicants whose deportation orders are not executed. A legitimate operation would also be possible if authorities, upon receiving the application from a foreigner whose sojourn period has expired, proceed his/her refugee status determination procedure as a priority and without delay, and then decide whether or not to issue the deportation or detention order. The most appropriate way to prevent the abuse of refugee status application is not to indiscriminately detain applicants, but to promptly process refugee status determination requests.!!

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The guideline that formed the grounds of this practice now seems to have been retracted as a 10

gesture of regret.

!3. Failure to record or videotape of the interview process !

! 1) Problems in Enforcement, Interpretation, and the Content of the Law !!Article 8 (Refugee Status Determination) !(3) The Chief may, if deemed necessary, record or videotape the interview process. In the case of a refugee status applicant requesting that the interview be recorded or videotaped, the Chief may not refuse the request.!

!In a refugee interview, the consistency of testimony is extremely important because

it is directly connected to the applicant’s credibility. Therefore, it is of paramount importance to ensure that the translation during the interview is free of error, the questions are well-guided, and the interviewer does not have negative bias against the applicant. In this context, the Refugee Act contains a new provision on recording during the interview.!!As it is written in the law, the Chief may record or videotape the interview process,

select audio or video recording, and, as stipulated in the latter part, has an obligation to heed applicant’s request to record the interview. This is a seemingly reasonable regulation, since it gives the Chief the right to choose between audio and video recording, and if he fails to provide it, is obligated to record or videotape at the applicant’s request. In practice, however, this provision is not in effect, because refugee status applicants are often reluctant to make this request out of fear of upsetting the interviewer, and even if they make a request as prescribed by law, interviewers frequently and illegally refuse to record. !!<Example Case>!Refugee status applicant, A, requested that the interview be recorded and videotaped, but her request was denied. The RSD officer claimed that 1) recording facility was not prepared due to a budget problem and that 2) the Refugee Act did not apply to the applicant A according to a supplementary provision, since her refugee status application date was prior to the enforcement of the Act. Also, during the interview the officer required her to have her phone visible and prohibited her from recording the interview herself. !

!Since it has been over a year since the enforcement of the Refugee Act, it is hard to

accept that recording facilities have yet to be prepared accordingly. Though there is a

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interrogation room equipped with video recording in the main building of the Immigration Office, officers have not given any information to the interviewees regarding the right, which indicates that the Immigration Office seems to lack the will to conduct recording. Refusing the request to record based on the supplementary provision is illegal in any case, for the supplementary provision has a legislative loophole and requires revision. !11

!In addition, it is unlawful to prohibit refugee status applicants from recording or

videotaping by themselves. Clause 3, Article 8 of the Refugee Act does not stipulate that only the Chief be the agent of recording, nor does it rule out the possibility of refugee status applicants recording on their own. Refugee status applicants have a right to record the own interviews because an interlocutor’s recording is legitimate according to the Protection of Communications Secrets Act. Although immigration officers should have a basic understanding that the interview during the refugee status determination procedure is not an ‘investigation,’ they still tend to regard it as a kind of interrogation from which they are to discover errors in the applicant’s argument and detect wrongful applicants; prohibition of recording seems to arise from this attitude.!

!2) Recommendations!!

Considering the importance of recording, the mental state of refugee status applicants, and the fact that it is not difficult to set up recording equipment, the provision on recording should be revised to a clear obligation that is applied in all cases ‘regardless of the applicant’s request.’ But before that, immigration officers must notify refugee status applicants that they have a right to request recording/videotaping the interview, and a physical copy of the recording as well. Applicants should also be allowed to record on their own if they wish to do so.!!

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For example, if it is interpreted that the Refugee Act does not apply to applicants who had filed for 11

refugee status before July 1, 2013 but are still in proceedings, it is not possible to apply the old Immigration Control Act, either. This is because the new Refugee Act has rendered the refugee-related provisions in the old Immigration Control Act invalid, and thus, there is no legal framework to apply to these applicants.

!4. Delays in refugee status determination procedure !

! 1) Problems in Enforcement, Interpretation, and the Content of the Law !!Article 18 (Recognition of Refugee Status) !(4) Determination of refugee status pursuant to paragraph 1 or 2 shall be made no later!than six months after the date on which the application was received. Should there!be unavoidable circumstances, however, this period may be extended by up to six!months.!

!Although there are no official statistics, it normally takes more than a year to be

notified of the result of refugee status determination from the date on which the application was received. The provision under Article 18 that the period of determination should in principle be restricted within six months ended up being empty words, as a notice of extension of review period of refugee status recognition is conventionally sent to most applicants. !!With regards to delays in the refugee status determination procedure, authorities

used to respond that it is an inevitable consequence of a shortage of officers and an accumulation of cases due to an increase in the number of applicants. Delays in status determination, however, not only torment the refugee status applicants psychologically as they worry about deportation or litigation depending on the results, but also make them extremely vulnerable, considering they rarely receive assistance for living expenses, have no medical insurance, and cannot obtain work permits easily (even if applicants do find a job, they are often subject to labor exploitation). As a result, these refugees, who already suffered from trauma in their home countries, are exposed to yet another abuse during the procedure. In addition, refugee status applicants whose permitted period of stay has already expired are not eligible for G-1 visa, and have to endure being undocumented; further, if they have been detained under the deportation or detention order, their right to liberty is violated by an extended period of detention. As the delay continues, refugee status applicants may also lose important memory or have memory distortion due to their social and psychological vulnerability, resulting in not being able to properly explain their circumstances later during the refugee interview. !!!!

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2) Recommendations!!The importance of increasing the number of refugee status determination officers

and allocating additional budget should be recognized government-wide. However, even this would not be a fundamental solution, for this does not guarantee that the process will be quicker. Therefore, a systematic case management system and an accumulated database for Country of Origin Information are needed. Moreover, authorities should change their attitudes from one that regards interviews as investigation for finding out abusive refugee status applicants to one that finds and supports genuine refugees. !

5. Problems in viewing and obtaining copies of relevant documents!

! 1) Problems in enforcement, interpretation, and the content of the law!!Article 16: Right to Access and Copy Relevant Documents!(1) A refugee status applicant may request access to or a copy of the interview record or relevant materials such as documentary evidence submitted by him/herself.!(2) If a refugee status applicant requests access to and a copy of relevant documents!pursuant to paragraph 1, immigration officers shall respond without delay. However,!this right may be limited if there is clear cause to believe that access to and/or!copying of the materials would materially hinder the fairness of the determination!procedure.!(3) Specific means and procedures for the access to and/or copying of the materials!pursuant to paragraph 1 shall be determined by Presidential Decree.!

!<Example cases>!- Several days after the interview, A, a refugee applicant, went to the Seoul Immigration

Office to view and obtain copies of the interview records and documents he provided; his request was rejected.!

- Immediately following the interview, B, a refugee applicant, requested a copy of the interview records; his request was rejected with the explanation that he must go through a separate application procedure later.  

- The lawyer of C, a refugee applicant, requested to view and obtain copies of interview records; her request was rejected, and she was told that the refugee himself must make the request.!

- Immediately following the interview which ended around 6 p.m., D, a refugee applicant, verbally requested a copy of the interview records; his request was rejected, and the immigration officer told him to come again the next day since working hours are over.!

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In the past, it was difficult for a refugee status applicant to obtain his/her interview records unless they are revealed during the litigation. Therefore, even though the interview records are critical in determining refugee status, applicants could not immediately check if the interviewer correctly recorded their speech and raise concerns if otherwise. Moreover, although interview records are the most important information in challenging non-recognition of refugee status, many applicants could not properly prepare for appeals and litigation because they could not access the records before the start of the litigation procedure. Recognizing these problems, the Refugee Act includes a regulation that requires immigration officers to fulfill applicant requests for a copy of the interview records without delay. !!It is only natural for a person to have the right to view and obtain copies of his/her

own testimony. However, as was the case before the enforcement of the Refugee Act and the principles within, when refugee applicants could access the records only through formal requests of information disclosure, the Korean immigration offices are not actively responding to requests of refugee status applicants to view and obtain copies of their own interview records. Furthermore, considering that it is natural duty of lawyers to legally express their refugee clients’ demands in the determination procedure with consent, it is problematic that the refugee applicants themselves must physically visit the immigration office to make the request. The enforcement decrees of Refugee Act state that refugee applicants must make the request in writing. In most cases, refugee interviews are finished close to 6 p.m. or after 6 p.m. Thus, if applicants verbally request a copy to the interviewer immediately following the interview, they are rejected in many cases with excuses that 1) business hours are over, and 2) the officer is not in charge of viewing and copying records, so the refugee must visit the office the following day during business hours to file the application to the appropriate officer. !!

2) Recommendations!!The Korean government should, in accordance with the law, permit the viewing and

copying of documents, regardless of the a) time of request and b) whether the request was made by the applicant or his/her legal representative. To lessen administrative burdens, it is advised that the refugee applicant be allowed to make a copy of the interview records immediately after the interview, complete with the seal and the signatures; to facilitate the refugee status applicant’s request, we advise that the applicant be informed in advance of the right to make such request. !!

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Further, in recognition of the intent of Article 16 of the Refugee Act, the enforcement decree should be revised so that applicants may make the request verbally, and have their request fulfilled without delay at time of request, even after business hours.!!

6. Issues surrounding resettlement !

1) Problems in enforcement, interpretation, and the content of the law!!Article 24 (Acceptance of Refugees Seeking Resettlement) !!(1) The Minister of Justice may permit resettlement in the Republic of Korea of!refugees seeking resettlement, after the Foreigners’ Policy Committee reviews their!size, regions of origin, and whether they can be accepted in accordance with Article!8 of the Framework Act on the Treatment of Foreigners Residing in the Republic of!Korea. Permission for resettlement shall be deemed recognition of refugee status!pursuant to Article 18 (1).!(2) Details including requirements and procedures for resettlement permission in the!country in accordance with paragraph 1 shall be stipulated by Presidential!Decree. !

!The issue of resettlement involves the most intricate and innovative institutional

measure amongst policies regarding foreigners. The problem lies not in the legal regulations themselves, but rather in the fact that the institutional framework for resettlement has yet to even begin; successful resettlement is unlikely, considering the selective nature of settlement permits and assimilationist support structures of the Second Basic Plan of Foreigners Policy; in the process of creating the framework for refugee resettlement, there has been no consultation with stakeholders, including the civil society. Civil society has requested to include local interpreters of Korean Provincial Reconstruction Teams (PRT) in the resettlement related program, as it was Korean government, which has contributed to aggravating the risk of persecution by dispatching the PRTs. The risk of persecution that local interpreters would face has become clear as PRTs have already publicly declared their withdrawal from Unit Ashena and other regions. Examples like the Afghan PRT show that there are lives to be saved from prompt implementation of the system; the delay in implementing resettlement procedure is problematic, since the Korean government must bear the responsibility.!!!

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2) Recommendations!!Resettlement system for refugees seeking resettlement must promptly be

implemented, and stakeholders including civil society must be actively consulted in the process of shaping resettlement. The direction should not be one of assimilationist support, but a multicultural approach that respects diversity. In particular, following examples of New Zealand and Great Britain, in order to protect them from the Taliban, local interpreters of Afghan PRTs that were dispatched from Korea should be allowed to enter Korea and receive similar status to refugees. !!

7. Cooperation with the UNHCR !

1) Problems in Enforcement, Interpretation, and the Content of the Law!!Article 29 (Exchange and Cooperation with UNHCR)!!(1) The Minister of Justice shall cooperate when UNHCR makes requests for statistics!and other information on the following matters:!1. The current situation of recognized refugees and refugee status applicants;!2. Compliance with and implementation of the Refugee Convention and the!Refugee Protocol; and!3. Acts and regulations on refugee affairs (including those in the pre-legislative announcement stage).!!(2) At the request of UNHCR or a refugee status applicant, the Minister of Justice shall cooperate with UNHCR so that UNHCR may do any of the following:!1. Interview a refugee status applicant;!2. Participate in interviews with a refugee status applicant; or!3. Submit opinions on determinations of refugee status applications or appeals.!(3) The Minister of Justice and the Refugee Committee shall accommodate UNHCR so that UNHCR may fulfill its mandate of supervising the implementation of and compliance with the Refugee Convention and the Refugee Protocol.!

!!!!!!!

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<Example case> !!J, a refugee status applicant, was at risk of deportation after he was notified of non-recognition of refugee status after the initial evaluation; J had yet to exhaust the Recognition of Refugee Status process. The UNHCR sent a letter to the Immigration Office explaining that this administrative action (deportation) may violate the principle of non-refoulement, but the Immigration Office failed to constructively cooperate; further, the UNHCR was prohibited from physically contacting the applicant detained in the deportation room. !

!The Immigration Office’s failure to cooperate with the UNHCR, despite the latter’s

clearly expressed concern that deporting a refugee status applicant at port of entry who has yet to go through a complete Refugee Status Determination procedure is against the principle of non-refoulement, is strongly inconsistent with the principles of Refugee Act. The Immigration Office’s refusal to let the UNHCR visit the applicant is particularly troubling, when there is an evident provision in the Refugee Act for meetings with refugee status applicants.!!

2) Recommendations!!The Immigration Office should, at the very least, post the phone number of UNHCR

in the deportation waiting room of the airport; allow UNHCR officers, as well as legal representatives, to meet applicants in person; and constructively collaborate with the UNHCR in not only the application procedure at port of entry but also during the regular Refugee Status Determination procedure. !!!!!!!!!!!!!

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III. Treatment of Refugees!

1. Family Unity Principle!

1) Problems in Enforcement, Interpretation, and the Content of the law!!Article 37 (Permission for Entry of Spouses and Others)!!(1) The Minister of Justice shall permit the entry into the country of any spouse and!minor children of a recognized refugee upon request for entry, provided that Article!11 of the Immigration Control Act does not apply.!!(2) The scope of spouse and minor children in paragraph 1 shall be defined in!accordance with the Civil Act.!

!<Example Case>!!A, a refugee status applicant, was recognized as a refugee after a long period of time. He attempted to bring to Korea his wife and children left in his home country, but it was impossible for his family members to obtain Korean visas.!

!Refugee Act Article 37 raised hopes for a realization of Family Unity Principle, but

the law did not have effect in reality. Family members of refugees need to obtain visas from travel offices in Korea, but problems in inter-department cooperation make it difficult. In other words, although the Refugee Act is binding to all government departments, since Ministry of Foreign Affairs has control over visa issuance and Ministry of Justice is in charge of refugee matters, it is a struggle for recognized refugees to have their families enter Korea under the principle of family unity.!!Furthermore, because of the nature of their status, it is difficult for refugees to obtain

documents proving family relations; this is one of many actual and legal obstacles to acquiring visas. ! !

2) Recommendations!!When recognized refugees express to the Ministry of Justice their will to bring

family members to Korea in accordance with Article 37, the Ministry must not process the request as individual cases. Instead, departments should work together to build a public,

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institutionalized system for confirming the refugee’s identity, status, and family information, and subsequently issuing visas for family members.!!2. Assistance with Living Expenses and Work Permits for Refugee Status

Applicants!

1) Problems in Enforcement, Interpretation, and the Content of the Law !!Article 40 (Provision of Living Expenses)!!(1) The Minister of Justice may provide living and other expenses to refugee status!applicants as specified by the Presidential Decree.!(2) As determined by the Presidential Decree, the Minister of Justice may permit a!refugee status applicant to engage in wage-earning employment six months after the!date on which the refugee application was received.!

!<Example Case>!!A, a refugee status applicant, had no cash in possession nor available-without-cost housing. He applied for living expenses, but received a rejection notice by text message in the cellphone about a month later. The text read, “According to check your application, you are left out of living expenses support,” without any further explanation of why his request was refused.!

!While living assistance and work permit are considered as the two main pillars of

accommodating refugee status applicants, living expenses are now doing very little for refugees due to a significant decrease in allocated budget. In the latter half of 2013, despite the enforcement of the new Refugee Act, the government did not receive any applications for living expense citing insufficient budget, and in 2014, it secured only 10% of the amount the government was supposed to have in order to cover living expenses of potential refugee applicants based on 2013 refugee applicant statistics. Clear standards for determining living expense eligibility are not publicized, nor are refused applicants informed of why they were rejected. The root cause of this problem lies in Clause 1, Article 40 of the Refugee Act, which grants the Minister of Justice discretion not only on the extent of assistance but also on the granting of assistance. In other words, it is in full accordance with the law to provide refugees with no support, or less than the minimum cost of living. Furthermore, refugees must submit an employment contract when applying

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for a work permit, since the permit is regarded as an exceptional provision to the refugee’s visa status (G-1); thus, refugees are legally entitled to work, but face significant barriers in reality, since employers are unlikely to provide refugees with employment contracts since the G-1 visa is widely known not to be work-eligible. As a result, refugee status applicants are given neither any living assistance nor right to work.!!Therefore, the current situation is not distinct from the past, when the old

Immigration Control Act did not provide any living assistance besides granting a work permit one year after refugee status application. With their application for living expenses rejected, refugee status applicants must rely on uncertain channels like the generosity of religious organizations and other groups until a work permit is available; as a result, many resort to ‘illegal’ employment. Even if the refugee receives living expenses, the amount (set at 382,200 KRW/approx. $378 USD per person), is much smaller than even the minimum cost of living in Korea; it it impossible for refugees to pay for housing and other living fees, a clear indication that the basic standard of living is impossible to meet for refugees in Korea.!

!2) Recommendations!!

Clause 1, Article 40 of the Refugee Act is a fundamental infringement of the right to live with human dignity; it should be the government’s legal duty to provide refugees with living expenses. Further, efforts to secure and expand the living expense budget should recognize living expenses as the foremost priority in ameliorating the treatment of refugee status applicants. !!Regarding work permits, the eligibility to work even with a G-1 visa should be

widely advertised. The paradoxical practice of granting work permits only with the submission of an employment contract must also be changed, so that refugees may inherently have the right to work for a certain period of time without having to go through an individual screening process. !!!!!!!

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3. Treatment of Refugee Minors !

1) Problems in Enforcement, Interpretation and the Content of the law!!Article 22, Convention on the Rights of Child !1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. !!2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention. !!Article 3, Convention on the Rights of Child!!1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. !2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. !3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. !!!!!

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Article 4, Convention on the Rights of Child!States Parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation. !

!<Example Case>!!In July 2012, a 15-year-old Unaccompanied Refugee Minor, B, entered Korea from country S in Africa. B applied for refugee status at Incheon International Airport, but was denied entry, and was subsequently detained in the deportation room for several months; during this time, he was only provided chicken burgers for meals and received threats of deportation. After a long and arduous fight, B was released, but the Korean government did not provide any support for subsistence, living, hospital care, and education; B relied on civil society help, but was discouraged by racial discrimination and the lack of opportunity to even receive a refugee status determination interview despite a long wait. Thus, B voluntarily chose to go back to his home country, lamenting “it is better to risk my safety in S than to live like this here.”!

!The first Unaccompanied Minor Refugee case in Korea is a direct testimony of the

problems inherent in its refugee system, including those after the Refugee Act. Issues in appointing a guardian (Unaccompanied Minor Refugees need a guardian to represent them in legal matters, but Korean authorities refused to even accept an application to the court for guardian appointment, despite related provisions in Child Welfare Act), delays in Refugee Status Determination process (for a year and a half, B did not even receive a notice for an interview), counteractive measures against racism (despite being obligated by the International Convention on the Elimination of All Forms of Racial Discrimination to proactively counteract racism, the Korean government has played no role in this issue; the government has responded to racist concerns in order to resolve the conflict with locals living near the Refugee Assistance Center protested the Center’s construction, but the government needs to adopt a more enthusiastic and systematic attitude to challenge racist approaches to refugees), the subsistence, education, health care and housing of Unaccompanied Minor Refugees are amongst a few of these weaknesses.!!!!

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2) Recommendations!!Along with improvements in the regular Refugee Status Determination process and

refugee status applicants, the government must consider the principle of prioritizing the child’s interest by treating Unaccompanied Refugee Minors with additional care. There also needs to be guidelines for future Unaccompanied Refugee Minor cases.!!

4. Inadequate Accommodation of Humanitarian Status Holders !

1) Problems in Enforcement, Interpretation, and the Content of the law!!!Article 39 (Treatment of Humanitarian Status Holders)!The Minister of Justice may permit a humanitarian status holder to engage in wage-earning employment.!

!Aside from the right to stay in Korea for a designated period of time and a permit to

work, humanitarian status holders are an extremely vulnerable group, to whom no effective rights are granted. The initial draft of related regulations by the Refugee Assistance Network had envisioned “the treatment of humanitarian status holders should be equal to that of recognized refugees, while their entry into and exit of Korea may be regulated according to presidential decrees,” but such principle was significantly narrowed during the legislation process.!!

<Example case>!!-­‐   A, a refugee status applicant, had received notification of non-recognition of refugee status, but also received a decision that implied grating of a humanitarian status. A, expecting secure residence in Korea, sought employment for subsistence; to his dismay, most employees did not understand the G-1 visa. A is also excluded from the national health insurance, and is afraid of getting sick.!

!Problems with the insecure legal standing of humanitarian status holders have also

been evident during the enforcement procedure in the past year. Granting of humanitarian status usually occurs concurrently with non-recognition of refugee status, which makes the applicant believe that the Korean government will not deport her to her origin country and permit her stay; however, the applicant cannot receive any public

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support in building her life here. As the National Human Rights Commission has acknowledged earlier this year as a human rights violation and advised remedial measures, humanitarian status holders are excluded from medical care as they cannot join regional health insurance. Even the basic ‘right to work’ is impeded as finding employment is extremely difficult, since status holders must apply for a work permit paradoxically after an employment contract is made and employers are ignorant of G-1 visa eligibility to work; even when the humanitarian status holder succeeds in finding work, legally staying in Korea with a work permit is very difficult. Furthermore, since legal period of stay must be renewed every year, the status holder cannot be sure of secure residence in Korea. Thus, besides non-deportation, the Korean government provides no right that makes adequate living possible. !!

2) Recommendations!!Considering the limits of legal provisions, a complete amendment, rather than a

change in interpretation, is needed. Since the Korean government creates expectation of integration into the Korean society by granting applicants humanitarian status, there is no reason to treat humanitarian status holders distinctly from recognized refugees. While minimal restrictions may exist if necessary, the treatment of humanitarian status holders should be equal to that of recognized refugees. !!

5. Refugee assistance facilities !

1) Problems in enforcement, interpretation, and the content of the law!!Article 45 (Operation of Refugee Assistance Center, etc.)!!(1) The Minister of Justice may establish and operate refugee assistance centers for the efficiency of the work specified by Articles 34, 41 and 42.!(2) The Minister of Justice may, if deemed necessary, delegate part of the work under Paragraph 1 to one or more private organizations.!(3) Use, operation and management, delegation to the private sector and other matters shall be determined by Presidential Decree.!

!Construction of the Refugee Assistance Center (presently, the Korea Immigration

Service) was completed by the Korean government in September 2013. On October 24th, Regulations on the Operation of the Korea Immigration Service (Ministry of Justice

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Directive No. 910) was enacted. The center has received refugees from February 2014, and currently houses around 20 refugee status applicants. The civil society has criticized the center for many reasons: from its conception, the center was not envisioned as a local community support system, but rather as a large institution that mirrors Hanawon, a temporary detention facility for North Korean migrants; operation costs for the center make up 37.8% of refugee-related budget in the Ministry of Justice (2014 budget), indicating inefficiency in budget allocation; it is unclear who the center’s primary users are; containing refugees from various religious and cultural backgrounds in a single place prioritizes administrative convenience over consideration for refugees. Residents in the local area have also unwelcomed the center for various reasons.!!From the present point of view, the relationship between this center and living

assistance is also tricky. In principle, the regulations hold that a six-month stay is granted to refugee applicants who applied for status recognition at the port of entry, and to refugee applicants who have less than 90 days of permitted stay in Korea; this period of six months coincides with the six months of living assistance eligibility. Thus, the framework is one in which refugee applicants choose to either apply for living assistance independently or enter the center during the first six months in order to facilitate settlement, thereafter living on their own expenses through an employment permit. However, even if the choice is up to refugee status applicants, the center is a more direct measure of government regulations; therefore, there is structural uncertainty regarding the provision of an adequate living assistance budget. In any case, it is unlikely that refugee status applicants would voluntarily choose to enter the center if both options are fully supported. !!The narrow requirements of entrants, which in practice are determined solely by the

Minister of Justice, are also problematic. Although the fact that the Minister has 12

discretion on deciding the entrants leaves open the possibility that refugee status

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Article 3 of the Regulations on Operation of the Korea Immigration Service Center 12

(1) “Eligible users” who may access the center shall mean the following:

1. A person who has applied for refugee status at the port of entry

2. A refugee status applicant who applied to access the center within 90 days of the end date of his/her permitted stay period

(2) Overriding Clause (1), those taking care of an infant or a child, those who are pregnant, unaccompanied minors, seniors and individuals with disability may be allowed primary access to the center.

applicants who had entered Korea a while before may also use the center, this also makes it likely that some refugees may be rejected from entering despite meeting the requirements, since the government, driven by racial and other prejudices, may prioritize administrative convenience and complaints from the local community. There is also a problem of lack of public notice on the use of the Center. As with notification of living assistance eligibility, which barely takes place aside from small writing on a bulletin in the Immigration Office, refugee status applicants seem to be completely unaware of the center’s presence and the possibility of entering.!!

2) Recommendations!!The fact that the budget for living assistance is uncertain while the center’s

operating budget is fully secured is a contradiction to the spirit of the Refugee Act, which envisions refugee status applicants to freely choose the type of initial settlement support. The government should put in adequate effort to secure a budget for living assistance separate from the center, and uniformly inform refugee applicants that they have the right to choose to either enter the center or apply for living assistance. !!

6. Long-Term Detention of Refugee Status Applicants !

1) Problems in Enforcement, Interpretation, and the Content of the law!!As aforementioned, the practice of detaining refugee status applicants whose legal

period of stay has expired persists. Once detained, refugee status applicants are detained long-term if they do not voluntarily give up the Recognition of Refugee Status process and choose to go back to their home country. This is because of Immigration Control Law 13

Article 63, Clause 1, an unconstitutional clause that implies that refugees may be detained indefinitely, with no judicial review, “until when they are deportable.” While most deportation orders are executed within seven days, long-term detainees who are held for as long as years are all refugee status applicants. The practice that makes such long-term detention possible shrinks the application pool in and of itself; has potential to impede the

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In the past, some refugees were detained for as long as four years before their cases were heard at 13

the Supreme Court. But since the revision of the Regulations on the Temporary Release of Detainees at the end of 2013, the policy has been changed so that release is granted in principle if the detainee receives a cancellation of non-recognition of refugee status, even if the court ruling is not finalized. But long-term detention will persist if the refugee loses the status recognition litigation, so the problem still remains.

principle of non-refoulement since refugees may give up on waiting for determination results because they cannot endure long-term detention; and causes severe mental trauma and physical debility of refugee applicants. !!Article 3 (Prohibition of Refoulement), Refugee Act !!Recognized refugees, humanitarian status holders and refugee status applicants shall!not, in accordance with Article 33 of the Refugee Convention and Article 3 of the!Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or!Punishment, be forcibly returned.!! Article 63 (Detention of a Person Under the Order of forced removal and the Release of Detention), Immigration Control Law!① When it is impossible to repatriate immediately the person under the Order of forced removal outside Korea, the head of office, branch office or immigration detention center may detain him/her in an immigration detention room or immigration detention center, or other places designated by the Minister of Justice until the deportation is possible.!② When it becomes clear that the person under the Order of forced removal cannot be repatriated due to various reasons such as the refusal of entry by other countries, the head of office, branch office or immigration detention center may terminate the detention by imposing residence restriction and other necessary conditions.!

!2) Recommendations!!

While these problems may be solved partly by amending the regulations on temporary release from detention – which, in the case of refugee status applicants, means release from detention from the date of filing of lawsuit until the date of final decision – a more fundamental solution is the revise the term “until when they are deportable” in Clause 1, Article 63 of the Immigration Control Law. We suggest, among other measures, that there be an upper limit on the maximum period of detention (e.g. 90 days), or that an intermediate review by the judiciary (e.g. deleting exception clauses in HABEAS CORPUS ACT or supplementing the current law with grounds for judicial review) is allowed, in order to prevent unnecessary long-term detention itself. !!Furthermore, there should be a regular provision of psychotherapy for refugee

status applicants currently held in long-term detention, along with improvements in Immigration Detention Center meant for short-term protection, such as facilitating communication (allowing internet/PCs, guaranteeing confidentiality of mail), and proactively providing opportunities for outside activities and exercise. !

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IV. Other Topics!

1. The Issue of Transferring Jurisdiction to Regional Courts !

1) Problems in Implementation, Interpretation, and the Content of the law!!Enforcement Decree of Refugee Act, No. 29 (Delegation of Authority)!!The Minister of Justice shall, according to Article 46, delegate to the Office Chief and others (for the head of immigration detention center, articles 3, 8 and 9 are not applicable) the authority to determine the following:!6. Matters related to recognition of refugee status, in accordance with Article 18!

!Since lawsuits to revoke non-recognition of refugee status require professionalism

distinct from other typical administrative cases, the Seoul Administrative Court has a separate department specifically focusing on refugee litigation. In this context, since the authority to determine refugee status is delegated to heads of local immigration office and the head of immigration detention center, and refugee-related work is similarly distributed to several different departments, refugee litigations increasingly take place in administrative branches of regional courts that have jurisdiction over heads of local immigration office and head of immigration detention center; this is distinct from the past, when refugee litigation happened in Seoul Administrative Courts, with the Minister of Justice as defendant.!!

2) Recommendations!!Although refugee litigation may proceed in administrative branches of regional

courts in accordance with disposition authorities’ territorial jurisdiction, considering the nature of revocation of non-recognition of status, there is no benefit to considering these cases in regional courts in terms of collecting evidence and performance of litigation. Thus, the government should consider having the department in charge of refugee cases submitting, immediately after receiving the case, a jurisdiction agreement form delegating authority to the Seoul Administrative Court, while appointing public-service judge advocates – and not immigration officers - as litigation performers.!!!

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2. Problems in Supplementary Provisions !

1) Problems in Implementation, Interpretation, and the Content of the law!!Supplementary Provision (Legislation No. 11298, Enacted Feb. 10, 2012)!!Article 1 (Date of Enforcement).!This legislation is to be enforced from July 1, 2013.!!Supplementary Provision (Legislation No. 12421, Enacted March 18, 2014) [Immigration Control Law] !!Article 1 (Date of Enforcement).!This legislation is to be enforced from three months after the date of promulgation.!

!Refugee applicants who applied for the status before Refugee Act was enforced but

are still in the process of refugee status determination including litigation, do not have any legislation applicable to them; previous refugee-related provisions in the Immigration Control Law are now void, with no expiration regulation. Thus, refugee status applicants who initiated the process before the enforcement of Refugee Act, despite being in the same situation as later applicants, are forced to rely solely on the discretion of the government, with no access to procedural rights in Refugee Act; recognized refugees are similarly subjected to this discrimination.!!

2) Recommendations!!First and foremost, supplementary provisions need an amendment in their

enforcement date. Refugee status applicants from before July 2013 should also be guaranteed due procedural rights and treatment of refugee status complying to with international standards and norms. More specifically, expiration regulations should be added so that applications under the old Immigration Control Law should be considered in the same manner as those under the current framework; previously recognized refugees must similarly be treated equally to recognized refugees under the current Refugee Act. !!

!!

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Ⅴ. Conclusion – Comprehensive Recommendations!!

It should be positively acknowledged that there is now a legal basis of refugee rights through a legislative framework of the Refugee Act, and that the Ministry of Justice has put in much effort into consolidating and amending the details of the Act. However, as areas for improvement have been identified during the recent enforcement period even in the single Refugee Act, it is clear that the system governing refugees needs to prompt remedial measures.!!As discussed above with regards to refugee status determination proceedings, ①

issue of refugee application process at port of entry, ② illegalities during the procedure of application, ③ failure to record/videotape interviews, ④ delays in the status determination process, ⑤ issues in accessing and copying relevant documents, ⑥ problems in resettlement, and ⑦ inadequate cooperation with UNHCR come into question. On the topic of treatment of refugees, ① Family Unity Principle, ② support for living expenses and granting of work permits for refugee applicants, ③ treatment of refugee minors, ④ treatment of humanitarian status holders, ⑤ refugee assistance facilities, and ⑥ long-term detention of refugee applicants are areas in need of amelioration. Besides, ①the  issue of litigation jurisdiction transferred to district courts, and ②the issue of supplementary provisions have been pointed out. In particular, supplementary provisions which create an evident legislative loophole demands immediate attention. Most other weaknesses can be dealt with even under the current legal system, if there is government will for correction.!!This past year, Korea has been reminded of the importance of communication in lieu

of authoritative bureaucracy. In the context of the Refugee Act, we will be able to predict the direction of refugee policy in the next three, five, and ten years if we see whether the government addresses these issues by listening to voices from the civil society or attempts to ignore them with the excuse that administrative changes are not easy. We hope for forward-looking efforts by the government to implement human-centered policies by embracing the refugees entering Korea. !!!TRANSLATED BY HYUN-SOO LIM, HAEUN LILY KIM, AND YOONJEONG YOU !EDITED BY HYUN-SOO LIM, APIL

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