How was the Refugee Law formed?
The South Korea’s National Assembly passed the very first independent ‘Law on the Status and Treatment of Refugees’ (hereafter ‘Refugee Law’) at its last plenary session (December 29, 2011). It has significant implications for refugee protection in Asia.
What was a legal basis upon which to protect refugees in South Korea before then?
Strange as it may sound, it was Immigration Control Act. Since 1992, when Korea ratified the 1951 UN Convention Relating to the Status of Refugees (hereafter Refugee Convention), and following Japan’s example, South Korea had merely inserted additional clauses in the already-existing Immigration Control Act as a way to indicate its ratification of the Convention. In other words, the law controlling foreigners has been regulating refugees who are unable to return home due to risk of being persecuted. This demonstrates how the idea of national security had saliency for Korea over the issues of human security when dealing with refugees. All foreigners – whether refugees or not - were perceived as either legal or illegal through the lens of the Immigration Control Act.
Since 2006 refugee activists and lawyers - who were acutely aware of these problems - started a series of discussions in order to have an independent refugee law and policies that is in line with the Refugee Convention. In 2009, the Seoul Bar Association developed a draft Refugee Act, and Congressman Woo-Yeo Hwang proposed it to the National Assembly. Finally the National Assembly passed the ‘Law on the Status and Treatment of Refugees’.
However, this new law is considerably different from what our Bar Association originally proposed. In fact it was drastically changed because of objections raised by the Ministry of Justice. These last minute changes made in the process of negotiation has left us with many concerns and problems to solve. However, let us look at its achievements before we discuss the problems.
The Refugee Law consists of three main sections: (1) a procedure for recognition of refugee status, (2) the creation of a refugee council, and (3) the standards for the social treatment of refugees. In this section, positive changes in ‘procedure for recognition of refugee status’ and ‘social treatment of refugees’ are discussed.
At airports in the United Kingdom it is relatively easy to find notices which give general information concerning asylum application procedures, but in Korea, it is not. The Refugee Law (Article 7.1) that outlines information on asylum application procedures as well as an application form is now made available at Incheon Airport.
In the past, even women and girls seeking asylum who had the traumatic experiences of being raped in their countries of origin were interviewed by male immigration officers. Now, under the new Refugee Law, asylum seekers can be interviewed by an officer of the same gender if interviewee requests it (Article 8.2).
Despite the fact that interview is crucial for obtaining the information required for making a claim, asylum seekers were provided with neither an interpreter nor were there any translation services available to allow them to verify their interview record. The new Refugee Act has improved ways to verify information collected from the asylum seeker by guaranteeing the right of an asylum seeker to: (1) check and confirm their interview record (Article 15), (2) be given interpretation and translation services during the interview (Article 14), (3), and to have their representatives present during the interview if they wish (Article 13), (4), and to have the entire interview audio- or video-recorded, if the interviewee requests (Article 8.3).
Even though consistency and coherence of the asylum seeker’s testimony is crucial for the adjudication of the claim, the interview scripts used to be inaccessible, even to asylum seekers themselves when filing an objection or an appeal. Now, the Refugee Law permits asylum seekers to access and copy their asylum application interview scripts so that they are also available to the legal representative (Article 16).
Formerly, there was no legal framework that allowed a person who is from a country that has not ratified the Convention, but recognised as a mandate refugee by UNHCR, to lawfully resettle in South Korea. Japan’s example in 2011, of accepting refugees for resettlement, motivated South Korea to also open its door to refugees for ‘resettlement’ in South Korea (Article 24).
The Ministry of Justice had authority to evict an asylum seeker at any time if s/he had previously received a deportation order. But under the new Refugee Law, in principle, an asylum seekers can stay in South Korea with the legal status of an asylum seeker until their case is completely finalized (Article 2.4, Article 5.6).
Although family members of a ‘recognised’ refugee could also be granted refugee status according to the principle of family reunification, bringing family members to South Korea itself was extremely difficult because they had to travel to Korea by the same unsafe and unlawful route that their ‘already-recognised’ refugee relative had used. To solve this problem, the Refugee Law has affirmed the ‘principle of family reunification’ by authorising the Minister of Justice to give entry permits to family members of ‘recognised’ refugees (Article 37.1).
Unlike the previous laws and regulations, the Refugee Law ensures the rights to the same treatment as nationals in terms of public assistance, labor legislation, social security, and taxes that are clearly stated in the Refugee Convention, complying with South Korea’s ‘Framework Act on Social Security’ and ‘National Basic Living Security Act’ (Articles 31 and 32).
The Refugee Act has also newly added regulations on: (1) accreditation of refugees’ academic and professional background and qualifications received overseas (Articles 35 and 36) just as the ‘Act on the Protection and Settlement Support of Residents Escaping from North Korea’ does for North Koreans and (2) it allows refugees to receive language training, education, vocational training to prepare them to successfully integrate in South Korean society (Article 34).
The Refugee Law now protects privacy and safety of the asylum seeker by punishing anyone who reveals personal information that enables others to identify an asylum seeker without the asylum seekers consent (Article 17, Article 47.1).
As discussed thus far, the Refugee Law has certainly improved refugee protection and assistance. Nevertheless, its latest version with its last-minute changes has left many problems unresolved, and this has consequently instigated discussions on needed amendments to the Refugee Law.
What changes to the Refugee Law are still needed?
First, regulations on the ‘simplified’ process of refugee status determination should be removed. The Refugee Law specifies several exceptional circumstances where the refugee status determination process can be simplified, but those regulations still reflect a lack of understanding of reality of the complexities of determining who is a refugee. In certain cases, Article 8(5) of the Refugee Law allows some refugee status determination processes to be skipped. But, in fact, the refugee status determination process is all about thorough interviews and fact-finding. Can any part of the process be omitted?
When an asylum seeker attempts to lie or conceal the facts (Article 8(5), Point 1)
Regrettably, this rule does not account for situations when an asylum seeker may have presented misinformation due to impaired memory resulting from experiences of persecution and/or when information may be intentionally withheld or changed for personal safety reasons.
When an asylum seeker reapplies with a fresh claim without any change in circumstances (Article 8(5), Point 2)
The refugee status determination process should be completed in full, regardless of any previous claim and apparent lack of change in circumstances. At the very least, the interview and fact-finding processes on the situation of the asylum seeker’s country of origin are required in order to determine whether the asylum seeker’s circumstances have changed or not.
When someone applies for refugee status close to the date of his visa expiration (Article 8(5), Point 3)
The decision to delay one’s refugee status application could result from a number of legitimate reasons. Unfamiliarity with the refugee status process and changing situations in one’s country of origin, for instance, may cause an applicant to file late. Unfortunately, even if an asylum seeker satisfies the substantive requirements to be recognized as a refugee, this exception makes it difficult for him/her to take a full advantage of Korea’s refugee protection system if they have applied late.
When a foreigner who has been scheduled for deportation applies for refugee status in order to delay execution of the eviction order
Whether or not an asylum seeker intends to delay imminent deportation, all refugee claims ought to be evaluated through the normal status determination procedure.
To summarize, the ability of the Minister of Justice to omit part of the determination procedure afforded by Article 8(5) should be removed from the Refugee Law. All refugee status determinations should be conducted with full consideration of the distinct characteristics of refugees’ psychosocial conditions and seriousness of the dangers that they may experience if returned to the country of origin.
The Refugee Act should be revised to make the South Korean government obliged to provide asylum seekers either work permits or financial support for living expenses.
The new Refugee Law allowing asylum seekers work permits and financial assistance for living expenses (Article 40) is indeed a much needed improvement over the previous Immigration Control Act, which provided work permits only to ‘exceptional’ cases.
However, it is problematic that the new law gives the government discretion regarding both work permits and financial assistance. Therefore, the Refugee Law should be amended to make at least either work permits or financial assistance an obligation under Article 40 (as ‘obligation clauses’) (i.e., providing financial assistance of living expenses if no work permit is given, or granting a work permit if no financial assistance of living expenses are provided) so that asylum seekers can have an adequate standard of living during the time their asylum claim is being adjudicated. Without such change, the current Refugee Law denies the right to live with dignity leading to de facto refoulement.
If an asylum seeker can neither receive assistance for living expenses nor be permitted to find employment, this can further be a violation of the ‘right to life or an inadequate standard of living’ (Articles 11 and 12) according to in the International Covenant on Economic, Social and Cultural Rights that South Korea has already ratified.
The International Covenant on Economic, Social and Cultural Rights acknowledges exceptional cases; for example, a country of asylum may gradually guarantee asylum seekers’ right to live an adequate standard of living’ if available resources in the country are restricted. If a country of asylum is a developing country, differential treatment between asylum seekers and nationals may be inevitable. But does South Korea have insufficient resources available for asylum seekers so that it can only gradually guarantee such rights as access to health? I do not think so. Even if South Korea were a developing country, it should not discriminate against asylum seekers and in favor of nationals based on non-economic reasons and the core human rights (such necessities as adequate food and water, housing, basic medical care, basic education) as clarified in the general comments by Committee on Economic, Social and Cultural Rights (CESCR) should be respected regardless of their nationalities.
Thus, Article 40 of the Refugee Law, which makes it possible for the South Korean government to provide no financial assistance for basic living costs to asylum seekers while denying asylum seekers’ right to work, should surely be revised.
The provision of Article 6(3) allowing officials at port of entry to decide whether or not to send the asylum applications to the refugee determination procedure, should be amended.
Previous regulations prevented asylum seekers from applying for refugee status at the port of entry, as the port was not considered South Korean territory. The Refugee Law has improved this situation, making it possible for people to apply for asylum at both the airport and the port of immigration rather than being required to apply for a temporary landing permit and then asylum.
However, Article 6(3) still allows the Minister of Justice to determine whether to refer a refugee application to the refugee status determination procedure. This is problematic because all refugee status applications should be assessed thoroughly through the full refugee determination procedure.
Moreover, how to appeal against the dismissal when it is decided not to send the claim is one of the consequent problems. Even if such cases could be litigated through administrative courts, there is yet no specific regulation on how asylum seekers in such circumstances can continue staying in South Korea during the litigation process.
Although further details on this may be specified and elaborated by its Presidential decree of Article 6 Paragraph 4, whether authorizing officials at the port of entry to dismiss the refugee application without considering its merit would truly conform to the Refugee Convention is strongly questionable. Therefore, in case of foreigners applying for asylum at the port of immigration, the Refugee Law should be revised to allow them go through the regular refugee determination process just like any other asylum seekers already inside the country, except restricting their personal freedom for identification procedure with time limits.
What else was omitted from the Refugee Law in the last-minute revision?
During the drafting process of the Refugee Law, the term ‘well-founded fear’ had been mis-conceptualized with the idea of ‘fear with sufficient evidence,’ connotation being ‘high standard of proof.’ That is why our ‘original’ draft of the Refugee Law corrected this mis-translated term, and re-defined refugees with the corrected concept of ‘fear with reasonable grounds,’ reflecting the French version of the Convention which has the same authority as English version which stipulates ‘craignant avec raison’, literally meaning ‘fear with reason’. But in the final draft, the concept of ‘fear with reasonable grounds’ was changed back to the older, mis-conceptualized one (Article 2.1).
Our recommended draft law allowed persons with humanitarian status to receive equal treatment as recognized refugees, but the Refugee Act ended up granting only work permits to them in the final draft (Article 39).
Though the original draft included the principle of ‘the benefit of the doubt,’ as stated in UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status, the final draft ended up allowing only the Minister of Justice to collect materials that are less favourable to an asylum seeker for refugee status assessment (Article 9).
While our draft enabled asylum seekers to receive a government subsidy for legal assistance and advice, the final draft was changed to simply recognize asylum seekers’ right to legal assistance, the clause about government subsidy deleted (Article 12).
Our draft included a regulation that allows recognised refugees to become nationalised Korean citizens through an accelerated procedure, adopting the Refugee Convention standards (i.e., considering a separate procedure for naturalizing refugees because of their special circumstances and status as vulnerable people who fear persecution if they are returned to their countries of origin), but the final draft was changed to require a ‘general’ naturalizing procedure – which is applied to a broader category of foreigners – to recognized refugees.
This review illuminates the struggle in which we are currently engaged. The new Refugee Law leaves us with mixed feelings, and many challenges ahead. On the one hand it has certainly improved refugee protection and assistance, but on the other hand, the latest version with its last-minute changes has left us with many concerns and problems to solve. I hope by providing an analysis of the passage of a refugee bill in Korea, by demonstrating how the Seoul Bar Association became involved in the process, and outlining what remains to be achieved, will encourage other countries in Asia to assess their domestic refugee law and critically reflect on what needs to be addressed and amended in order to improve the rights and protection of refugees in their care.
 Act on the Protection and Settlement Support of Residents Escaping from North Korea
Accreditation of Academic Background (Article 13).Persons eligible for protection may obtain accreditation of the academic background corresponding to their respective levels of school education received in North Korea or foreign countries, as prescribed by Presidential Decree.Accreditation of Qualifications (Article 14).Persons eligible for protection may receive recognition of the qualifications corresponding to all or part of those, which they acquired in North Korea or foreign countries, as prescribed in relevant Acts and subordinate statute.
 The Minister of Unification may conduct supplementary education or re-education necessary for applicants for the accreditation of their qualifications, as prescribed by Presidential Decree.
Where it is deemed necessary to implement paragraphs (1) and (2) a committee mandated to examine whether to grant the accreditation of qualifications may be set up as prescribed by Presidential Decree. There was an absurd incident when personal information concerning a refugee who was in the process of filing an appeal after a rejected asylum claim was released to media. As a result, acquaintances learned the inside story - even the details of his/her persecution that s/he especially wanted to keep confidential. This incident raised the need for protection of information about asylum seekers.