The Examination of South Korea’s Immigration and Refugee Act in relation to the Past and Current Refugee Issues in the Nation
South Korea has recently experienced a sudden influx of Yemenis, mostly in Jeju Island. South Korea, a signatory of 1951 UN Convention and the first Asian country that enforced its own refugee law, holds both international and national responsibilities regarding refugee issues. At the same time, however, the government is required to meet the citizens’ requests asking to limit the number of refugees recognized and to enforce a stricter standard in accepting refugees. In response to those requests, the Ministry of Justice has recently proposed reinforcement measures to amend the existing Refugee Act, while several members of National Assembly have proposed a revised bill of the Immigration Act. Given this situation, an examination of South Korea’s Immigration Act and Refugee Act, in relation to the past and current refugee issues of the nation, is imperative for future reference.
I. Introduction: Background of Research
- The Recent Phenomenon on Jeju Island, South Korea
Compared to European countries where refugee issues have long been recognized as a significant social problem, South Korea has been relatively free from those issues. Recently, however, the country has encountered a sudden influx of Yemenis especially in its southernmost territory, Jeju Island; Up to 2017, the total number of Yemenis who claimed to be recognized as refugees was 430, while the number surged to 552 only for 5 months, from January to May 2018. 527 out of 552 entered South Korea through Jeju Island.
Two have been stated as the main reasons for this phenomenon; First, in order to boost a tourism industry, Jeju Island introduced a visa waiver program that allows foreign visitors to stay for up to 30 days without a visa with the exception of nationals from 11 countries including Afghanistan and Syria, for security reasons. Secondly, Malaysian Airlines has been offering direct flight services between Malaysia and Jeju Island since December 2017, which made it easy for Yemenis to fly to the island.
- Discussions and Measures Proposed
This recent phenomenon on Jeju Island has raised controversial discussions across the country. According to a survey conducted on July 5 by Realmeter, a research company, 53.4% of citizens were against accepting Yemenis as refugees while 37.4% were in favor. Main rationales of opposition are based on the protectionism on economic sector, such as a lack of resources in supporting refugees and a request to secure job opportunity to locals, and also on the social unrest due to cultural conflicts. On the other hand, the advocates insist humanitarianism, a nation’s international responsibility to take care of refugees, and a realistic need to embrace other cultures.
The opposition between these two opinions imply that it is essential for the South Korean government to draw public consent as much as possible while taking actions needed.
(2) Measures Proposed
Along with wide-spreading worries, the Ministry of Justice proposed several measures to cope with the problems. First and foremost, the Ministry of Justice limited the area where Yemenis can stay within Jeju Island, and added Yemen to the list of 11 countries whose nationals require official visas to enter South Korea as of 1 June 2018. Furthermore, the South Korean government proposed to amend the Refugee Act and to provide legal measures to prevent the system from being abused by migrants entering and staying illegally.
II. South Korea and Refugee Issues: in Early Age
The first refugees South Korea encountered were political exiles from Communist countries, such as those from China and North Korea. Since their ultimate destination, however, was third world nations like Switzerland, the South Korean government did not have to recognize them as refugees; it was responsible for supporting the refugees in migrating to third world nations.
After 1975, when South Vietnam was defeated in Vietnam War, numerous Vietnamese refugees, so called ‘boat people’, arrived at South Korea through port cities located in southern part of the country. About 160 Vietnamese arrived during the year 1977 only. Although the South Korean government established ‘Vietnamese Refugees Relief Center’ in Busan, the second largest city of the country, most of the relief tasks were administered by Korean Red Cross with the support of UNHCR.
The ‘boat people’ were entitled to stay in South Korea according to the Article 14(Landing Permission in Distress), 1983 Immigration Act, but were not provided governmental protection. South Korean Supreme Court also confirmed that the South Korean government did not have any legal obligation to protect refugees on the grounds that the obligation could not be drawn from national law, nor from generally accepted international law.
III. The Immigration Act of South Korea
The Immigration Act of South Korea, which had been called ‘Immigration Control Act’, was first enacted in 1963 and has been amended for 39 times since then.
- The Amendments of the Act
(1) 1993 Amendment (Act no. 4592)
One of the most notable amendments of the Act is the one made in 1993, which was done in accordance with the adoption of 1951 UN Refugee Convention. The amended Act stated the definition of ‘refugee’ for the first time, which simply accepted the definition stated in 1951 Convention(Article 2, 2-2). Also, several provisions that aimed at fostering the refugees’ rights were established: Article 16-2(Temporary Landing Permission for Refugees) allowed refugees to stay in South Korea up to 90 days under certain conditions, and Article 64(Country of Repatriation), Clause 3 forbade the government to send refugees back to their home countries. Despite of the amendment, however, the Act was criticized as it lacked specific provisions regarding the treatment of refugees and the process of recognizing refugees. The Article 16-2 remains in current Immigration Act, while the Article 64, Clause 3 was eliminated in 2012 as the similar provision was adopted in the newly-enacted Refugee Act, Article 3.
(2) 2008 Amendment (Act no. 9142)
In 2000, South Korea became a member of the UNHCR Executive Committee, the UNHCR’s top governing body, and then another significant amendment was made in 2008. More meaningful provisions that can foster the rights of refugees were adopted: Article 76-8(Treatment of Refugees, etc.), Article76-9(Assistance to Refugees, etc.), and Article76-10(Exclusion of Application of Reciprocity against Refugees). Moreover, the period that allowed any person who failed to be recognized as a refugee to raise an objection against the Minister of Justice got extended double, from 7 days to 14 days.
(3) 2018 Amendment (Act no. 15492)
The most recent amendment was made in March 2018, which will be enforced in September 2018(Act no. 15492). According to the amendment, one of the purposes of the act will be ‘social integration’ instead of ‘the recognition of refugees’ (Article 1).
- The Revised Bill (Bill no. 2013703)
In May 2018, 10 members of the National Assembly, represented by Jumin Park, have proposed the revised bill of the Immigration Act along with the revision of Habeas Corpus Act, which mainly focused on solving problems of long-term detention of the immigrants.
According to the current Immigration Act, when a foreigner was decided to be repatriated but cannot be immediately repatriated for some reason, the person can be detained in detention facility until he or she can be repatriated(Article 63, Clause 1). The main problems of the provision is that first, the detention order can be issued without a thorough consideration, and second, the term of the detention can be extended virtually indefinitely as the provision simply states “can be detained… until he or she can be repatriated.” In fact, UN Commission on Human Rights once pointed out the problem and advised to render a separate decision when the detention needs to be extended. Also, 5 Constitutional Justices out of 9 stated that the provision violates the due process as well as the detained foreigners’ freedom of body, and thus in violation of the Constitution.
Realizing these problems, the revised bill contains the following 3 main propositions:
i) A detention order should be issued with a thorough consideration regarding the necessity of the detention and the detained person’s vulnerability.
ii) A judicial review should be available when the detention period is to be extended.
iii) The initial detention period until the repatriation cannot exceed a year.
IV. The Refugee Act of South Korea
Facing the limit of the Immigration Act in refugee issues, it had long been suggested to enact a separate refugee act by various civic organizations since early 2000s. Indeed, the first draft of the Bill of Refugee Act was written by several lawyers and social activists who were active in enacting a refugee law. After the bill was brought in National Assembly in 2009, the Refugee Act was enacted in 2012 and has been enforced since July 2013, which made South Korea the first Asian country to establish and enforce its own refugee law.
- Purpose and Definitions
(1) Purpose (Article 1)
The Refugee Act is to prescribe matters concerning the status, treatment, etc. of refugees in accordance with the 1951 Convention Relating to the Status of Refugees.
(2) Definitions (Article 2)
1) The term “refugee” means a foreigner who is unable or does not desire to receive protection from the nation of his/her nationality in well-grounded fear that he or she is likely to be persecuted based on race, religion, nationality, the status of a member of a specific social group, or political opinion, or a stateless foreigner who is unable or does not desire to return to the nation in which he or she resided before entering South Korea in such fear.
2) The term “person recognized as a refugee” means a foreigner recognized as a refugee.
3) The term “person granted a humanitarian stay permit” means a foreigner granted a stay permit from the Minister of Justice as prescribed by Presidential Decree as a person who has rational grounds for recognizing that his/her life, personal liberty, etc. is very likely to be infringed by torture, other inhumane treatment or punishment or other events even though he or she is not recognized as a refugee.
In 2016, after 3 years of enforcement of the Refugee Act, a research was conducted to evaluate the Act as requested by the Ministry of Justice.
(1) Positive Evaluations
1) By clearly defining the term “person who has applied for refugee status” in Article 2, it became able to secure their rights to get a trial as well as their general status.
2) By establishing Article 3(Prohibition of Compulsory Repatriation), which considers the person’s own intention, the scope of people who can be protected by the provision got enlarged.
3) According to the Article 5, Clause 6, a refugee applicant is permitted to legally stay in South Korea until a decision of recognition or non-recognition of refugee status is made.
4) According to the Article 40, a refugee applicant is entitled to get a subsidy for living costs for the first 6 months, and an opportunity to get a job after then.
(2) Negative Evaluations and Limitations
1) It is difficult to discern ‘disguised refugees’ who abuse refugee recognition system to pursue financial interests only from ‘real refugees’. Although Article 8 has two clauses that allows an examiner to omit several stages in refugee decision process or to suspend the process when the applicant is suspected to be a ‘disguised refugee’, it is not easy to confirm the suspicion as well as to clarify the meaning of ‘suspend the process’.
2) As Article 6 was established, it became able to apply a refugee recognition process also at ports of entry and departure. At the same time, according to Article 3, Clause 2, the Enforcement Decree of the Refugee Act, applicants who applied at the ports are obliged to undergo an interview, which can take up to several days due to a small number of translators compared to the total number of applicants.
3) According to the Article 5, Clause 1, the Enforcement Decree of the Refugee Act, the Minister of Justice may not refer an applicant at a port of entry and departure to refugee status screening under certain cases. The clause has been criticized in a sense that a presidential decree should not limit one’s right without any specific delegation.
V. South Korea and Refugee Issues: Current Situation
- Statistics of Refugee Decision (April 1994~2017)
In 2010, for the first time after enacting the Refugee Act, South Korea granted a citizenship to a 38-year-old Ethiopian man. The new South Korean citizen fled persecution in his homeland and arrived in South Korea in 2001. It was recognized as a milestone in Asia, where few countries have signed the 1951 Convention, and even fewer have extended citizenship to refugees.
Despite of South Korea’s pioneering actions toward refugee issues, it is not easy to be recognized as a refugee, more so to be granted a citizenship. From April 1994, when South Korean government started receiving asylum claims, to 2017, the number of people who claimed to be refugees amounted to 32,733. 19,438 people out of them have received a judgment while the others are waiting for the judgment or retrieved the claims, and only 706 among them were recognized as refugees; it means the ratio of being recognized as a refugee is about 2.16%. South Korea also provides a ‘Humanitarian Stay Permit’ to people who were found not to be refugees but still in need of international protection. The ratio of people who have received humanitarian status is also quite low, which is about 4.50%.
- Statistics of Refugees in 2017
Among 32,733 people who had claimed to be recognized as refugees up to 2017, 9,942(30.37%) claims were made in the year 2017 only. About 1,292(13%) among them were re-claims. Out of 9,942, only 121(1.22%) were recognized as refugees while 318(3.20%) were granted a ‘Humanitarian Stay Permit’. The rest 6,807(68.47%) were the ones either dismissed (5,607) or withdrawn (1,200).
- Recognizing as a Refugee
When a person claims to be recognized as a refugee and then the claim is dismissed, he or she can object to the Mister of Justice. When the objection is also dismissed, the person can file a complaint to the Administrative Court. The complaint can be filed 3 times, including appeal and final appeal. Therefore, a refugee decision process can take up to 5 stages. There is no limit for a person whose claim is dismissed in claiming again, which is one of the reasons that make the load of refugee decision tasks heavy.
(2) Facts of 2017
1) Average period of time taken to a refugee decision was about 7 months.
2) 38 personnel were in charge of a refugee decision; 22 of them were located in Seoul, the capital city, 4 in Incheon, 4 in Incheon International Airport, 2 in Gwangju, and 1 in each other major cities.
3) 197 people were the applicants at the ports of entry and departure, and only 21 of them were submitted to get the decision process.
VI. Measures Proposed by Ministry of Justice
- Short-term Measures
(1) To increase personnel in refugee decision: Currently, 4 personnel including 2 interpreters are in charge of deciding refugee on Jeju Island, and the government is planning to increase to 6 personnel (including 2 interpreters) by early July 2018. By doing so, it is expected to shorten decision period from 8 months to 2-3 months.
(2) To make identifying process stricter: This is to screen out foreigners who have records of terror or felony, and to reduce possible social problems and public worries.
- Long-term Measures
(1) To amend Refugee Act: The South Korean government proposed to amend the Refugee Act by adding provisions that can prevent migrants who only seek for economic opportunities from entering or staying illegally.
(2) To increase expertise in refugee decision: For instance, experts can be hired to accurately assess the situation of the applicants’ nations. The Ministry of Justice also plans to establish a specialized tribunal for refugee decision. This is to simplify deciding stages: from current 5 stages to at most 3-4 stages.
- Seongsun Kim, Introduction of Refugee Law and Social Change: focusing on direct and indirect effects of law, Graduate School of Ewha Womans University, 26 (2017).
- Evaluations on Refugee Act and Discussions on Possible Amendment after 3 Years of Its Enforcement (trans. by writer), Service Report Requested by the Ministry of Justice (Dec 2016). (http://www.prism.go.kr)
- Legislation/Information, Statistics, Department of Refugee, the Ministry of Justice of South Korea (http://www.moj.go.kr)
- Press Release, the Ministry of Justice of South Korea (29 Jun. 2018).
 Refugee Application Status in Jeju Island and the Governmental Reaction (trans. by writer), Press Release, the Ministry of Justice of South Korea (29 Jun. 2018).
 84도39 (Supreme Court, May 22, 1984).
 Immigration Act (Act No. 14585), https://elaw.klri.re.kr/kor_service/lawView.do?hseq=42633&lang=ENG (last visited July 2018).
 Immigration Act (Act No. 4592) http://law.go.kr/lsInfoP.do?lsiSeq=4945&ancYd=19931210&ancNo=04592&efYd=19940701&nwJoYnInfo=N&efGubun=Y&chrClsCd=010202#0000, (last visited July 2018).
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 Immigration Act (Act No. 15492), http://law.go.kr/lsInfoP.do?lsiSeq=202760&ancYd=20180320&ancNo=15492&efYd=20180921&nwJoYnInfo=N&efGubun=Y&chrClsCd=010202#0000 (last visited July 2018).
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 2017헌가29 (Constitutional Court, Feb. 22, 2018).
 Refugee Act, https://elaw.klri.re.kr/kor_service/lawView.do?hseq=43622&lang=ENG (last visited July 2018).
 Evaluations on Refugee Act and Discussions on Possible Amendment after 3 Years of Its Enforcement (trans. by writer), Service Report Requested by the Ministry of Justice (Dec 2016), http://www.prism.go.kr (last visited July 2018).
 South Korea – Refugee granted citizenship for first time, The UN Refugee Agency (March 2010), http://www.unhcr.org/news/briefing/2010/3/4ba89d939/south-korea-refugee-granted-citizenship-first-time.html (last visited July 2018).
 Refugee Application Status in Jeju Island and the Governmental Reaction (trans. by writer), Press Release, the Ministry of Justice of South Korea (29 Jun. 2018).