On March 30, in the lawsuit for disclosure of the refugee stay guidelines, the Seoul High Court ruled that the Minister of Justice must disclose all of the refugee stay guidelines, except the content of “Measures for persons who use forged or altered passports and persons who entered the country clandestinely” and the content of “Stay permission and violation review for persons who entered the country clandestinely”, which fall under stay management and violation review of refugee applicants and others. Immediately after the ruling became final, on April 14, NANCEN (Refugee Rights Center) requested disclosure of all guidelines on refugee status determination, treatment and stay. On April 27, the Ministry of Justice disclosed only the matters concerning stay management and violation review dated April 2020 and withheld all the other guidelines, on the grounds that disclosure could markedly harm important national interests in immigration administration and could undermine the fairness of refugee status determination work.
The disclosed guidelines on “Stay management and violation review of refugee applicants and others” contain, as of April 2020, the content on stay management and violation review of refugee applicants, stay management of humanitarian status holders, and stay management of recognized refugees.
Through the disclosure of these guidelines, although the information is not up to date, refugee applicants, humanitarian status holders and recognized refugees in Korea have gained access to basic information related to immigration: applications for permission to stay (extension, change and so on), applications for work permits (extension), family reunification, and the criteria for handling violations. These matters are important to their rights and actual lives, yet they had remained veiled at every moment, so that it was hard even to predict what changes they would bring to daily life. There is now also room to monitor and control whether administrative handling is arbitrary or abused, and whether the operation of the guidelines contravenes relevant laws such as the Refugee Act, the Refugee Convention and the Immigration Control Act, or international standards.
Yet once again, the guidelines on refugee status determination and treatment were withheld on the grounds that related litigation has not ended and that disclosure could harm the interests of the state, and only the guidelines from two years ago, which were contested in court, were disclosed instead of recent information. This runs counter to the purpose of the court ruling that refugee guidelines must be disclosed in order to secure transparency and fairness in refugee administration and to promote predictability in administration. The Ministry of Justice’s attitude of repeated information disclosure requests, a gruelling fight that has to go as far as litigation, only reluctantly disclosing the part of the guidelines that the court ordered to be disclosed, and concealing most of the guidelines again is an admission that its immigration administration is secretive administration.
The disclosed guidelines on “Stay management and violation review of refugee applicants and others” show that immigration administration has relied to a large extent on discretion. As a result, it has been common for immigration officials in charge to exercise discretion as they please. For example, the guidelines allow a stay of up to one year for refugee applicants, but in practice most refugee applicants stay with a stay permission of six months, and sometimes extensions are granted for periods as short as one month or three months without any explanation, leaving the right of refugee applicants to stay and their right to survival in an unstable situation. Meanwhile, the guidelines state that work permits may exceptionally be granted when six months have not passed since the refugee application but the head of the office recognizes a particular need for humanitarian consideration (for example, pregnant women, persons with disabilities, and persons responsible for supporting others), but in practice there has been no case of such consideration other than the temporary measure taken exceptionally for Yemeni refugees who arrived in Jeju in 2018 out of policy need, and it was not even publicly known whether such a measure was possible.
In addition, these guidelines have clearly exposed the discriminatory and unlawful practices of immigration authorities in the management of stay. It has been confirmed that, without any legal basis, the guidelines direct that extension of status of stay be refused and a departure order be issued to persons such as those who were lawful residents at the time of the refugee application but have stayed for one year or more and are within four months of the expiry date of the period of stay, and repeat refugee applicants. Also, although the Refugee Act sets the time limit for refugee status determination at six months, status determination is delayed for one to two years or more, and the responsibility for this is shifted onto refugee applicants, who are charged a fee at every extension of stay. Furthermore, the provisions of the guidelines on the unstable status of humanitarian status holders, such as cancellation of the stay permit of humanitarian status holders, may contravene international conventions such as the Convention against Torture, and the provision allowing deportation to be enforced during refugee recognition procedures on the grounds that a person has harmed or is likely to harm the public safety of the Republic of Korea is highly likely to be applied in violation of the principle of non-refoulement for refugee applicants.
We plan to monitor the content of the guidelines so that refugee administration is operated fairly, transparently and lawfully, and to distribute the guidelines so that refugees can check basic information and be guaranteed the right to stay safely. The Ministry of Justice must continue to disclose the latest guidelines applied to refugees in line with the purpose of the court ruling, and must comprehensively review whether the guidelines comply with relevant laws and international standards and whether they unlawfully restrict the rights of refugees excessively. And the immigration authorities must stop the practice of unlawful administration that exceeds or abuses discretion.
May 3, 2022
Korea Refugee Rights Network (KORIN), Rainbow Refugee Network