[No. 24-23 Human Rights#8]
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On May 20, 2024, at 2 PM in the Gwacheon Citizens’ Hall, a press conference was held urging the withdrawal of the proposed amendments to the Immigration Control Act. They criticized the new law proposed by the Ministry of Justice.
In summary, the law allows for the detention of foreign nationals for a basic period of 18 months, extendable up to 36 months, allows for re-detention of those released from detention, and introduces a new body called the ‘Committee for the Review of Protected Foreigners,’ which is deemed unnecessary.
The Ministry of Justice should immediately withdraw the [ Immigration Control Act ] legislative notice.
On April 11th, the Ministry of Justice announced a partial amendment bill of the ‘Immigration Control Act’ (Ministry of Justice Notice No. 2024-140) for legislative notice. This amendment bill is scheduled to be submitted to the National Assembly after receiving opinions through the National Legislation Center by May 21st, and undergoing review by the Legislative Office and approval by the State Council.
The reason the Ministry of Justice announced the partial amendment bill of the ‘Immigration Control Act’ this time is because last year in March, the Constitutional Court ruled the constitutionality of Article 63, Paragraph 1 of the ‘Immigration Control Act,’ thereby restricting the validity of the current regulations until May 31, 2025. Article 63, Paragraph 1 of the ‘Immigration Control Act’ stipulates that a foreigner who has received a deportation order can be detained in a foreigner protection facility ‘until he or she can be deported to his or her home country,’ thus facing criticism for the potential for excessive human rights violations at home and abroad.
However, in announcing the legislative notice this time, the Ministry of Justice prepared the bill with contents that completely overturned the intentions of the criticism from domestic and international civil society and the Constitutional Court ruling. First, regarding the Constitutional Court’s decision to specify the upper limit of detention, the legislative notice allows detention for a basic period of 18 months, extendable to a maximum of 36 months. The Ministry of Justice explains this as an effort to strengthen the protection of the basic rights of the protected person by setting an upper limit on the protection period of a person subject to deportation orders. However, the decision of the Constitutional Court, emphasizes not only the need to set an upper limit on the detention period but also that the detention period must be a ‘reasonable period’ and ‘the minimum necessary period.’ The overall purpose of the decision was that in the ‘Immigration Control Act,’ ‘protection’ should be limited to ‘temporary or provisional measures,’ and the degree of restriction on the freedom of the protected person should not be excessive compared to the ‘public interest’ sought. In this light, the basic 18-month and maximum 36-month detention limits proposed in the legislative notice are excessively long. Hasn’t the Ministry of Justice itself revealed that the average protection period in foreigner protection facilities is ‘barely ten days’ and long-term protection for over a year is rare?
Moreover, the legislative notice stipulates that in specific cases, the detention period can be extended up to 36 months, or 3 years, if it is determined to be related to specific laws such as the National Security Law and the Anti-Terrorism Law. The problem is that this provision does not require a guilty verdict from a court. Even in the case of non-indictment or a suspended prosecution decision, and in some cases, even during the investigation, a foreigner can be detained for a long period based solely on the judgment of the immigration authorities. This period is not included in the detention period in criminal cases. It opens the way to detain foreigners for a long time without a warrant by taking advantage of the anxiety of the people about national security. Additionally, the same applies to a person who has received a sentence of imprisonment for more than a year for crimes determined by the Minister of Justice’s decree. Even if they have completed their sentence and are released, they can be detained again for up to 3 years in a foreigner protection facility, solely at the discretion of the Minister of Justice. Even in the case of receiving a probation sentence from the court, instead of preparing for an appeal trial in a non-custodial state, they must be confined to a foreign protection facility again.
This reminds the ‘Parole System’ during the era of President Chun Doo-hwan, in which habitual offenders were sent back to the probation office after completing their sentences. Although a clause was attached stating ‘in cases where extradition is impossible due to non-cooperation,’ the judgment on this is also left to the Ministry of Justice. Similar to the ‘Parole System,’ which was criticized as ‘cumulative imprisonment,’ even if the person completes the term of the sentence and is released, the bill allows for the possibility of being temporarily released only to be detained again, potentially causing public criticism about long-term detention to be temporarily silenced.
Secondly, Article 63-3 of the legislative notice stipulates that a foreigner who has been released from detention can be re-detained while resetting the detention period from the beginning. This opens the way for foreigners who have already been detained for an excessive period to be re-detained based on the arbitrary judgment of the immigration authorities, potentially leading to repeated re-detention to suppress public criticism of long-term detention temporarily. The Constitutional Court provided examples and suggested concrete measures that could substantially prevent the escape or additional criminal acts of a released foreigner, but there are hardly any legislative alternatives in sight, and only additional requirements for re-detention are being added.
Finally, the Ministry of Justice plans to establish a body called the ‘Committee for Reviewing Protected Foreigners’ to independently review and decide on matters related to the legality, validity, and necessity of ‘protection.’ However, according to the legislative notice, the chairman of the ‘Committee for Reviewing Protected Foreigners’ will be appointed by the Minister of Justice, and the members will also be appointed or commissioned by the Minister of Justice. Among the 9 members, civil servants are included, and the civilian members are also filled with people desired by the Ministry of Justice. All members are non-permanent, and instead, a secretariat will be established, which seems to be operated by immigration officials. It is clear that such a body cannot make ‘independent’ reviews and decisions, as can be seen from the similar structures of the currently operating ‘Committee for Reviewing Long-term Protected Foreigners’ and ‘Refugee Committees.’ Furthermore, the Constitutional Court ordered the establishment of a ‘control procedure by a neutral institution independent of the executing agency,’ but this directly contradicts that. Moreover, the Ministry of Justice, after the so-called ‘Shrimp Bending Incident,’ announced that it would promote legislative improvements to have ‘the judiciary or other third-party institutions determine the propriety of protection initiation and extension,’ which has regressed significantly compared to that statement.
For these reasons, we demand that this legislative notice be immediately withdrawn. The Ministry of Justice should cease immediately forcing the legislative notice, which contains contents that directly contradict the spirit of the Constitutional Court decision and forcefully insists on the intentions of the Constitutional Court decision to enhance the basic rights of foreigners.
Today is the ‘World Day of Migrants and Refugees,’ designated by the South Korean government. The reason for creating the ‘World Day of Migrants and Refugees’ is said to be “to create a social environment where Korean nationals and resident foreigners can live together by respecting each other’s cultures and traditions.” However, in a country where a law allowing detention of up to 3 years without a court warrant based solely on being a foreigner is being proposed for legislative notice, can a social environment “where we can live together” be fostered? If the Immigration Control Act is amended according to the legislative notice, the ‘World Day of Migrants and Refugees’ may need to be renamed ‘World Day of Shame for Migrants and Refugees.’ The Ministry of Justice should no longer create situations that embarrass the people and should voluntarily withdraw the ‘legislative notice.’
May 20, 2024