Denial at the Airport, Denial of Procedural Fairness: Examining the Korean Refugee Act

by Seongsoo Kim

Attorney for BAE, KIM & LEE, LLC

Introduction          

The Korean Refugee Act (Law No. 11298 of 2012)[1] made it possible to apply for refugee status at ports of entry into Korea (Article 6). Before its enactment, only those asylum seekers who had already been admitted into Korea could apply for refugee status at local immigration .[2] However, at the same time, the Refugee Act allows immigration officers at ports of entry to decline the referral of the application to the refugee status determination procedure.  Anyone who is denied a referral is prohibited from leaving a restricted area (waiting room or deportation room) in the transit zone of the airport, and is only allowed to remain in that area to wait for a return flight.[3] The underlying problem becomes clear when an applicant does not accept the immigration officer’s decision and refuses to board a return flight to her country of origin. In such a case, the Korean Government does not physically force the applicant to board a plane as a rule; instead, the Government typically waits for the applicant to become exhausted by feeding her only burgers and sodas in a small secured room.[4] In February of 2014, a Sudanese filed a suit seeking ‘revocation of denial of referral’ or ‘release from the confinement and referral to the RSD procedure.’[5] The case (hereafter referred as 30385) will be discussed below in an effort to understand the legal standing afforded to refugees at ports of entry into Korea under the new Act and what rights a refugee might have to ensure their case is heard in the event that their ‘referral’ is initially denied.

The Case of 30385

The Sudanese asylum seeker departed from Khartoum on 18 Nov. 2013 and arrived at the Incheon International Airport on 20 Nov. 2013 via China and Hong Kong. He applied for refugee status to the immigration officer at the airport claiming that if returned, he would be drafted by the Sudanese government and forced to kill his own people in an area of conflict such as Darfur. The immigration officer denied both his entry and referral to RSD on the ground that his purpose of entry did not comply with that of his visa, which was for a short business visit and that he was just a draft dodger who was unlikely to be persecuted by Sudanese government, so his refugee claim was manifestly ill-founded. Though he was ordered to return, he decided to challenge the immigration officer’s action with the help of local pro bono refugee lawyers and filed a suit to the Incheon District Court.

In the response brief, the Korean Immigration Service contended that its denial of referral could not be contested in a courtroom because it was just a factual/internal disposition that did not entail any legal consequences. Also, it insisted that even if the asylum seeker won the suit it would not result in the asylum seeker’s automatic entry, because the revocation of the denial of referral, the goal of the suit would bring the situation just before the denial (still no referral). As a result, to be admitted into the Korean ‘territory,’ the asylum seeker must file and win another suit seeking entry itself. Therefore, the Immigration Service argued that by seeking the revocation of the denial of referral alone the asylum seeker lacked legal standing.

The Incheon District Court rejected that contention and recognized the legal standing on the ground that the asylum seeker had his own legal interest in the revocation of the denial of referral itself and being brought back to the situation before denial. Furthermore, as a matter of fact, the revocation compelled the Immigration Service to admit him and refer his application to RSD procedure, because the Refugee Act obliged the Immigration Service to do so, as the decision on referral was not made within 7 days from the initial application.[6] The district court’s opinion was upheld by Seoul High Court and the Immigration Service complied with the judgment by allowing the plaintiff to be admitted.

Alongside seeking the revocation of the denial of referral, the Sudanese applicant first filed a petition for habeas corpus on 29 Dec. 2013, which was based on a separate law, the Habeas Corpus Act.[7] While being detained, he was forced to stay in a small restricted room and provided with an awful diet until judicial intervention on the matter of legality of the denial of referral occurred. In that case concerning the habeas petition, the Immigration Service argued that the petitioner was not under detention, because if he wanted to return home he was free to leave the room and do so, which meant that the remedy of habeas corpus was not applicable to him. The Incheon District Court rejected the argument and ordered the petitioner to be released.[8]

In upholding the decision, the Supreme Court of Korea held that the physical freedom of an individual is such a fundamental right guaranteed to all human beings that the remedy of habeas corpus is applicable to the asylum seekers who are confined in the waiting room of the international airport, if they are forced to do so by immigration authority for an extended period of time without firm legal grounds.[9] Nevertheless, the remedy of habeas corpus itself has limited effect in mitigating the difficulty of asylum seekers who are still denied referral to RSD procedure and entry. After winning the remedy of habeas corpus, asylum seekers are released from the room, but not admitted yet. They still have no other place to go out of the waiting room but to the restricted area in the transit zone of the airport. Surrounded with many luxurious shops and busy travelers, they have nothing to do.

Refugees Arriving at Ports of Entry and Questions of Territory

The problem has become more severe; the Korean government has denied the referral of 28 young Syrian male refugee applicants to RSD after the Paris terrorist attacks in November. . Last June, the Incheon District Court revoked all the denials and compelled the immigration services to allow them entry and to determine their refugee status following ordinary procedures in line with the precedent of case 30385. The ‘fortunate’ Syrians still had to endure more than 6 months of the terrible conditions mentioned above before the court reached its decision.

Refugee advocacy groups in Korea are demanding their government to give up the faulty system of referral to RSD at the airport. The denials of referral can only be justified for the applicants whose case is so manifestly unfounded that the immigration officers at the airport cannot make a mistake in their judgment. Contrary to that, the rate of denial was 28% in 2015, which was decreased from 63% in 2014 and 40% in 2013.[11] Such a high rate of denial implied that immigration officers took much broader margin of error than can be justified in interpreting and applying the concept of ‘manifestly unfounded.’ It inevitably follows that some genuine refugees might be denied even before RSD procedure, which clearly constituted breach of the international obligation of non-refoulment.

Faced with that criticism, the Korean immigration authority has not shown any signs of changing their policy substantially. They insist that border control cannot be opened automatically just by the application of refugee status. They believe that before any asylum seeker is admitted by an immigration officer, he/she is still not yet in Korean territory. According to this argument, the Korean government is not required to examine his/her case with the procedural guarantees stipulated by the Refugee Act without worrying about any risk of breach of international obligation. In my opinion, the position of the Immigration Service is squarely wrong. The international airports are undeniably within the jurisdiction of Republic of Korea. Anyone who arrives at the airport is under Korean jurisdiction and are physically present within the territory of the Republic of Korea by any meaning.[13] The Supreme Court’s decision made this clear in addressing the habeas corpus matter. The Korean government’s absurd insistence is not new. It is clearly encouraged and strengthened by some other countries’ examples. It is disappointing to see Korea intentionally follow the practices of other signatories that abandon their responsibilities under the Refugee Convention.

Conclusion

The Ministry of Justice of Korea made public its intention to revise the three-year-old Refugee Act. The revision is said to include the procedure of application at the airport. At the moment, the MoJ does not seem to have given up its rigid posture that any asylum seeker who is denied admission is not in our territory. I hope it can find a more practically workable mechanism while guaranteeing the essence of procedural fairness. To do that, first of all, the mechanism should be based on reality, not on imaginary construction. It means that the Korean government should assume the responsibility for anyone who is refusing to return by challenging the denial of admission at the airport and it should take care of his basic needs in decent conditions. In addition, if the Korean government cannot settle the matters within a reasonable time (for example one or three months), it should temporarily admit him (if necessary, reasonable limitation on the right of movement can be imposed) and allow his case to be reviewed by ordinary RSD procedure.

[1] https://perma.cc/N73M-CA54

[2] The former article 88-2 sec.1 of Enforcement Decree of the Immigration Act stipulated that “A foreigner who intends to apply for recognition of refugee status under Article 76-2 of the Act shall submit an application for recognition of refugee status along with documents vindicating his/her refugee status and two copies of his/her photograph to the head of the office or branch office or the head of an internment camp.”

[3] https://perma.cc/PG4P-5AE9

[4] https://perma.cc/DF4Q-TAM4; https://perma.cc/LTU5-TPQX

[5] Incheon District Court 2014guhab30385, delivered on 16 May 2014.

[6] 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. (http://www.refworld.org/docid/4fd5cd5a2.html )

[7] https://perma.cc/EEN4-CAY7

[8] Incheon District Court 2014inra4, decided on 30 April 2014.

[9] Supreme Court of Korea 2014inma5, decided on 25 August 2014. However, the petition was dismissed on the technical ground that legal standing was lost as the respondent (Korean Immigration Service) released and admitted the petitioner while the case was pending at the court.

[10] https://perma.cc/75WW-S4HJ

[11] Statistics of refugee, table 8-1(nancen.org/1517).

[12] Supra note 15.

[13] For detailed deliberations, see James C. Hathaway, The Rights of Refugees under International Law, pp. 171-173, 290-291.

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