On March 27 this year, the Constitutional Court of Korea (CCK) issued a decision of nonconformity to the Constitution on Article 63, Paragraph 1 of the Immigration Act, which allows foreigners under a deportation order to be detained in a foreigner detention center for an indefinite period. Out of concern that a simple finding of unconstitutionality would create a legal vacuum that could not be tolerated, the Court postponed the loss of effect of the provision until June 1, 2025. Accordingly, the Ministry of Justice (MOJ) should have taken measures that could be implemented immediately to improve the unconstitutional law and system by that deadline, but it has not stated any official position. To reduce the situation in which even more people are harmed and to minimize the unconstitutional elements, the statement requests seven measures.
Below is the original text of the statement.
[Statement] Immediately Stop the Immigration Detention of Foreigners Found Incompatible with the Constitution!
On March 27, the Constitutional Court issued a decision of nonconformity to the Constitution on Article 63, Paragraph 1 of the Immigration Act, which allows foreigners under a deportation order to be detained in a foreigner detention center for an indefinite period. The Court stated explicitly that the provision violates the principle of proportionality and the principle of due process set out in the Constitution and infringes the personal liberty of detainees. However, out of concern that a simple finding of unconstitutionality would create a “legal vacuum that could not be tolerated,” the Court issued a decision of nonconformity that postponed the loss of effect to June 1, 2025. The intention was for the National Assembly to enact an improved law quickly within that period.
Naturally, this decision never confirmed that Article 63, Paragraph 1 of the Immigration Act does not violate the Constitution until May 31, 2025. The provision has been in violation of the Constitution since March 27, the day of the Court’s decision; only the time at which it loses effect was put off, out of concern for a “legal vacuum that could not be tolerated.” Therefore, a properly functioning government would have immediately carried out every measure it could take right now to improve the unconstitutional law and system.
However, almost two months after the Constitutional Court’s decision, the MOJ has not stated any official position and continues to operate the foreigner detention centers exactly as before, as if nothing had happened.
In fact, the detention centers are being filled with far more people than last year. According to materials obtained through an information disclosure request to the MOJ, the number of people detained in foreigner detention centers in the first quarter of this year reached 674 at the end of January, 813 at the end of February and 846 at the end of March, a sharp increase from 304, 196 and 285 in the same months of last year. Detention of minors also rose: in the first quarter of last year there were none, or at most 3 in the highest month (March), whereas this year there were 4 at the end of January, 3 at the end of February and as many as 8 at the end of March. As for people held for long periods of three months or more, last year the lowest month (February) had 50 and the highest month (January) had 111, while this year even the lowest month (February) had 92 and the highest month (January) had 100, slightly fewer than last year. However, the number of people held for more than one year rose to 21 at the end of January last year but fell to 4 in March this year.
The reason the detention centers are more overcrowded than last year is that, as the COVID-19 pandemic comes to an end, the joint government crackdowns on undocumented foreigners that had been suspended are being carried out again. The MOJ recently announced that it has forcibly deported about 13,000 undocumented foreigners through joint government crackdowns since the beginning of this year. It also said it would hold joint crackdowns once every quarter as a regular practice, which means that crackdowns will be carried out in eight months of the year.
However, announcing large-scale joint government crackdowns while leaving in place the provision of the Immigration Act that was found incompatible with the Constitution is no different from saying that the government will ignore the fact that large numbers of foreigners will have their right to personal liberty infringed. Even at this moment, not a few victims are spending desperate days detained without a proper review and without knowing when they will be released. Counting from past victims, the number of people who have suffered under this unconstitutional system is so large that it is hard to count them all. We condemn the MOJ, which, far from apologizing to and compensating them, announces that it will produce still more victims.
A properly functioning government would do everything it can to minimize the unconstitutional elements of law enforcement even before the law is amended. Therefore, we demand that the following measures be implemented immediately.
First, minimize the issuance of deportation orders so as to minimize the number of foreigners who are detained. During the COVID period, the MOJ already operated systems such as the departure order performance deposit system to prevent overcrowding in the detention centers and reduced the number of detained foreigners. Recently, however, this system has hardly been used. Until the law is amended, such systems must be actively used to minimize the number of detained foreigners.
Second, actively allow temporary release from detention for foreigners held for long periods of three months or more. This too was already done when mass infections of COVID-19 were a concern.
Third, hurry to implement the human rights improvement plan for the detention centers that was announced after the so-called “shrimp-bending” incident (the use of a restraint technique) the year before last. Apart from the improvement of some facilities at the Hwaseong Detention Center, there have been no notable achievements or results so far.
Fourth, officially apologize to all foreigners harmed by unconstitutional detention, including the parties to this constitutional case, and compensate them for the harm.
Fifth, completely stop the detention of children and adolescents.
Sixth, stop the joint crackdowns on undocumented foreigners.
Seventh, establish a table for consultation with civil society for the proper amendment of the Immigration Act.
May 20 happens to be “World Citizens’ Day,” designated by the government. The slogan for this year’s World Citizens’ Day, the 16th, is “Empathy and Respect, a United Korea.” We earnestly hope that it will be a World Citizens’ Day on which the Korean government shows “empathy” for the pain of the victims of the unconstitutional system and “respects” the decision of the Constitutional Court.
May 19, 2023
외국인보호소 고문 사건 대응 공동대책위원회 [AFI온누리 사회사도직, 공익법센터 어필, 공익인권법재단 공감, 난민인권센터, 다산인권센터, 사단법인 두루, 생각나무BB센터, 서울이주여성상담센터, 소수자난민인권네트워크, 외국인보호소폐지를위한물결 International Waters31, 외국인이주·노동운동협의회((사)모두를 위한 이주인권문화센터, 아산이주노동자센터, 부천이주노동복지센터, 인천외국인노동자센터, (사)한국이주민건강협회 희망의친구들, 남양주시외국인복지센터, 성공회파주이주노동자센터 샬롬의집, 포천나눔의집, 서울외국인노동자센터, 아시아인권문화연대, 순천이주민지원센터, 외국인이주노동자인권을위한모임, 의정부EXODUS, (사)함께 하는 공동체, (사)한국이주여성인권센터, 원불교 서울외국인센터, 한삶의집, 이주민센터 동행), 이주노동자평등연대(건강권 실현을 위한 보건의료단체연합(건강권 실현을 위한 행동하는 간호사회, 건강사회를 위한 약사회, 건강사회를 위한 치과의사회, 노동건강연대, 인도주의실천의사협의회, 참의료실현청년한의사회), 공공운수노조사회복지지부 이주여성조합원모임, 노동당, 노동사회과학연구소, 노동전선, 녹색당, 대한불교조계종사회노동위원회, 성공회 용산나눔의집, 민변노동위원회, 사회진보연대, 이주노동자노동조합(MTU), (사)이주노동희망센터, 이주노동자운동후원회, 이주민센터 친구, 전국민주노동조합총연맹, 전국불안정노동철폐연대, 전국학생행진, 지구인의정류장, 천주교인권위원회, 필리핀공동체카사마코, 한국비정규노동센터), 이주민 인권을 위한 부산울산경남 공대위, (사)이주민과 함께, 이주여성인권포럼, 장애여성공감, 천주교인권위원회, 한국이주인권센터, 화성외국인보호소방문시민모임 <마중>], 외국인이주노동자인권을위한모임, 민주노총 경주지부 부설 경주이주노동자센터, 이주노동자 인권 노동권 실현을 위한 대구경북지역연대회의, 난민인권네트워크 [TFC(The First Contact for Refugee), 공익법센터 어필, 공익변호사와 함께하는 동행, 공익사단법인 정, 공익인권법재단 공감, 국제난민지원단체 피난처, 글로벌호프, 난민인권센터, 동두천난민공동체, 동작FM, 민주사회를위한변호사모임 국제연대위원회, 사단법인 두루, 사단법인 선, 사단법인 이주민센터 친구, 아시아의 친구들, 아시아평화를향한이주MAP, 외국인이주노동자 인권을 위한 모임, 이주민지원공익센터 감동, 참여연대, 천주교 의정부 교구 이주사목위원회, 천주교 제주교구 이주사목센터 나오미, 재단법인 동천, 재단법인 화우 공익재단, 제주평화인권연구소 왓, 한국이주인권센터], 한국장애포럼(KDF), 장애여성공감, 참여연대, 오류동퀴어세미나, 케이엔피플러스 KNP+, 사회복지연구소 물결, 사단법인 두루, 정태수열사추모사업회, 장애해방열사_단, 가족구성권연구소, 성적권리와 재생산권리를 위한 센터 셰어SHARE, 이주여성인권포럼, 홈리스행동, 한국게이인권운동단체 친구사이, 성노동자해방행동 주홍빛연대 차차, 팔레스타인평화연대, 평화바닥, 반제국주의 학습모임 반격, HIV/AIDS인권연대 나누리+, 청소년인권운동연대 지음, 한국이주여성인권센터
