Fahamu Refugee Legal Aid Newsletter

Jong-Chul Kim, Advocates for Public Interest Law, Seoul.

Here I would like to focus on the advocacy methods we consider under the current domestic legislation in terms of protecting and promoting the rights of refugees and asylum-seekers.

Refugee application at the airport case

I will start with some of the actual cases we have dealt with. One month ago, being alerted to the case by UNHCR, I talked to a Somali detained in a holding cell at the Incheon airport. He needed our help so as not to be deported back to Somalia. He was only 15 year old. Even though he revealed his intention to seek asylum at the airport, he was moved into the cell and denied entry into Korea. He stayed in the cell for almost a month, being fed only chicken burgers three times a day.

The reason he was detained in spite of his applications for refugee status was that the immigration authorities did not receive the refugee application from the airport. They never admitted why they did not receive the application from the airport, but we assume it is because the airport is considered outside Korean territory. Such an interpretation of territory has been criticised by the Human Rights Court in Strasbourg as a legal faction.  

Since we were not allowed access to the cell, I requested that a staff member working for the airline which carried him to Korea get me power of attorney from him by fax. When the officials tried to forcibly deport him, and failed because of his resistance, I went to the Seoul immigration office as well as the immigration office at Incheon airport to submit a refugee application on his behalf. As expected, they refused to receive the application claiming that the application could not be accepted at the airport. I took the case to court on the grounds that refusing to receive a refugee application at the airport is illegal since the relevant law states that anyone in Korea may apply for refugee status and the airport is technically in the territory of Korea.

In order to get him released, we used the newly-enacted Habeas Corpus Act making a petition to the Court on the grounds that he was illegally detained by a private entity, in this case, Airline Operators Committee, which is in charge of this cell at the airport, or by an administrative order.

A few days after we made a petition to the court concerning his detention and sued for the refusal of receiving refugee applications, the immigration office spontaneously allowed him to enter Korea without any explanation. Since there is no assistance for refugee applicants from the government, the role of taking care of him was passed to civil society organisations to help  him with everything from accommodation to medical services. We have tried to find him a place to stay, a pro bono psychologist, a dentist, and even glasses. Now the big challenge is how to get him the opportunity to receive a proper education.  

These are the means we used for this asylum seeker detained at the airport. Let me now move to the second case.

Prolonged detention case

We represented an asylum seeker from Nigeria after he had been detained through a deportation order, whose case we later won in court, but the Ministry of Justice (MoJ) would not release him despite him being detained for almost two years. The MoJ claimed that they could not release him until the Supreme Court had finalised the decision.

In order to get him released, we started a campaign of gathering signatures, saying that since murder suspects are released by the court once they are found innocent and before the court decision is finalised, refugees in detention who have not committed a crime should be released when the court has decided in their favour before the court decision is finalised.

We sent the signature petition to the Minister of Justice and we alerted the media to the campaign. The immigration detention system and its practice in Korea has been criticised as one of arbitrary detention, which is prohibited by the International Convention on Civil and Political Rights (ICCPR) because indefinite detention is allowed without periodic judicial review. Based on this persistent criticism of arbitrary detention, the MoJ revised the relevant law, so now the MoJ must approve of a prolonged detention every three months, reviewing the legality and necessity of the detention.

We also requested that information be disclosed each time the Minister of Justice approved a continued detention and he specify on which grounds he did so. As a result, we were able to discover that the MoJ’s first approval of prolonging detention in the Nigerian case was conducted one or two days late, making the continued detention illegal. We filed an objection to the MoJ for the illegality of his prolonged detention without proper periodic review, but our objection was rejected so we took the case to court to challenge the rejection. The case is now pending and we plan to file a constitutional case challenging the relevant provision in the Immigration Control Act which makes it possible to detain refugees indefinitely without periodic judicial review. We will argue that the provision in the Immigration Control Act itself is violating the freedom of movement enshrined by the Constitution. We have also applied for temporary release, which is the sole alternative to detention in Korea, but this application was also not accepted.     

However, after the efforts that I have mentioned, and like with the earlier Somali teenager, the Nigerian man was suddenly released. Nevertheless, I have not withdrawn the case challenging the illegality of detention.

Deportation Case

The last case I want to mention is one that concerns deportation. Last year an asylum seeker from Ethiopia was deported to his country of origin after two and half months in detention in an airport cell. He was deported even though he claimed that he would be in danger on return to Ethiopia. On his way back, he was stopped at the airport in Thailand where he had a layover en route to Ethiopia, as Ethiopian Air had declined to carry him.

He spent another seven months in detention at the Bangkok airport. While he was detained in Bangkok, the Thai Committee for Refugees (TCR) contacted us to intervene. Through the efforts of TCR, we had the opportunity to visit Thailand to interview the Ethiopian man. When we departed for Bangkok, we had hoped to take him back to Korea, but the MoJ did not respond to my letter proposing that he be returned to Korea. More to the point, the Ethiopian refugee did not want to go back to Korea, a place where he had been maltreated and abused by authorities.

On return from Thailand, we made a petition to the National Human Rights Institution (NHRI) of Korea concerning this incident of refoulement, the refusal of receiving a refugee application from the airport, and the Ethiopian man’s arbitrary detention. Recently, we contacted the media to cover this story, hoping to secure better results of future petitions to NHRI. Fortunately the Ethiopian man was recognised as a refugee by UNHCR in Thailand and resettled in New Zealand.

In conclusion

We made a request to the MoJ to attach the refugee application form in Microsoft Word to the Ministry website so that asylum seekers are able to download the form, as the form is currently written on software made by a Korean Company not familiar to foreigners.

We also sent an opinion letter to the MoJ on various cases, including opinions on Country of Origin information (COI) for pending cases. When one of our clients, who had been recognised as a refugee, was requested by the immigration office to pay a fine for his so-called illegal stay, I sent an opinion letter to them, arguing that because he stayed in Korea as a refugee on arrival, meaning his stay from the beginning was legal, no matter when he was recognised as a refugee it is not legal to impose a penalty on him for an illegal stay.

What I have described are several official and unofficial ways to solve problems and better the asylum system in Korea. But in many cases, an unofficial approach is more effective. To make unofficial or informal approaches possible it is crucial to sustain friendly relationships with officials, although in my own case, the manner in which I have worked with the MoJ has been quite confrontational.