In the lawsuit for disclosure of the refugee stay guidelines, decided on March 30, the Seoul High Court ordered the Minister of Justice to disclose all of the refugee stay guidelines, except for the content on “measures for those who use forged or altered passports and those who entered the country by stealth” and the content on “stay permission and violation review for those who entered the country by stealth,” within the guidelines on stay management and violation review for refugee applicants and others. Immediately after the judgment became final, on April 14, NANCEN (Refugee Rights Center) requested disclosure of all the guidelines on refugee status determination, treatment and stay. On April 27, the Ministry of Justice disclosed only the matters on 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 impair the fairness of refugee status determination work.
The disclosed guidelines on “stay management and violation review for 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.
With the release 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 immigration information, such as applications for stay permission (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 been veiled at every moment, and it had been 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 conflicts with related laws and regulations such as the Refugee Act, the Refugee Convention and the Immigration Act, or with international standards.
However, this time again the guidelines on refugee status determination and treatment were withheld, on the grounds that related litigation has not yet ended and that disclosure could harm national interests, and only the guidelines as of two years ago, which had been contested through the court judgment, were disclosed rather than recent information. This runs counter to the purpose of the court judgment, which is that information on the refugee guidelines should be disclosed in order to ensure the transparency and fairness of refugee administration and to promote the predictability of administration. After repeated requests for information disclosure and the arduous fight of taking them to court, the Ministry of Justice reluctantly disclosed only some of the guidelines that the court ordered it to disclose and concealed most of the guidelines again. This attitude is an admission by the Ministry itself that its immigration administration is secretive administration.
The “stay management and violation review for refugee applicants and others” guidelines disclosed this time show that immigration administration has relied heavily on discretion. As a result, it has been common for the immigration officials in charge to exercise their discretion as they please. For example, in the case of refugee applicants, the guidelines allow a stay of up to one year to be granted, but in practice most refugee applicants stay with a stay permission of six months, and sometimes receive extensions as short as one month or three months without any explanation of the reason, which has left the right to stay and the livelihood of refugee applicants in an unstable position. Meanwhile, the guidelines state that, even if six months have not passed since the refugee application, a work permit may exceptionally be granted when the head of the office or others recognize a particular need for humanitarian consideration (for example, pregnant women or those supporting persons with disabilities). In practice, however, apart from the temporary measure taken exceptionally for Yemeni refugees who arrived in Jeju in 2018 out of policy need, there has been no example of such consideration, and it was not even known whether such a measure was possible.
The guidelines also clearly reveal the discriminatory and unlawful practices of immigration in its stay administration. It has been confirmed that the guidelines, without any legal basis, bar the extension of status of stay and direct that a departure order be issued to persons who were staying lawfully at the time of the refugee application but have stayed for more than one year with a stay period expiring within four months, and to those who have applied for refugee status again. In addition, although the Refugee Act sets a time limit of six months for refugee status determination, the determination is being delayed by one to two years or more, and the responsibility for this is shifted onto refugee applicants, who are charged a fee each time they extend their stay. Furthermore, the provisions of the guidelines on the unstable status of humanitarian status holders, such as the cancellation of their stay permission, may violate international conventions such as the Convention against Torture, and the provisions of the guidelines that allow deportation to be carried out during the refugee status determination procedure on the grounds that the person has harmed or is likely to harm the public safety of the Republic of Korea are highly likely to be operated in violation of the principle of non-refoulement applying to refugee applicants.
We plan to monitor the content of the guidelines so that refugee administration is operated fairly, transparently and lawfully in the future, and to distribute the guidelines so that refugees can check basic information and be guaranteed the right to stay safely. In keeping with the purpose of the court judgment, the Ministry of Justice must continue to disclose the latest guidelines applied to refugees, and must comprehensively review whether the guidelines comply with related laws and international standards and whether they unlawfully restrict the rights of refugees excessively. Immigration must also stop the unlawful administrative practice of exceeding or abusing its discretion.
May 3, 2022
Korea Refugee Rights Network (KORIN), Rainbow Refugee Network
