Hello, this is Refugee News from MAP
On 20 May 2024 at 2 p.m., a press conference urging the withdrawal of the proposed amendments to the Immigration Control Act was held at the Gwacheon Citizens’ Hall. Speakers criticized the new law proposed by the Ministry of Justice.
In brief, the law allows foreign nationals to be detained for a basic period of 18 months, extendable to 36 months, allows people released from detention to be detained again, and creates a new body called the “Review Committee for Detained Foreigners,” a body regarded as unnecessary.
The Ministry of Justice must immediately withdraw
the legislative notice of the
‘Immigration Control Act’
On 11 April, the Ministry of Justice announced a partial amendment bill to the “Immigration Control Act” (Ministry of Justice Notice No. 2024-140) for legislative notice. The amendment bill is scheduled to be submitted to the National Assembly after opinions are received through the National Legislation Center by 21 May, and it is subject to review by the Ministry of Government Legislation (MOLEG) and approval by the State Council.
The reason the Ministry of Justice announced the partial amendment bill to the “Immigration Control Act” this time is that in March last year, the Constitutional Court of Korea (CCK) ruled that Article 63, Paragraph 1 of the “Immigration Control Act” does not conform to the Constitution, thereby limiting the validity of the existing provisions until 31 May 2025. Article 63, Paragraph 1 of the “Immigration Control Act” provides that a foreigner who has received a deportation order may be held in an immigration detention center “until deported to their home country,” and it therefore faces criticism for the possibility of excessive human rights violations at home and abroad.
However, by announcing the legislative notice this time, the Ministry of Justice prepared a bill whose contents completely nullify the intent of the criticism from domestic and international civil society and of the Constitutional Court’s ruling. First, regarding the Constitutional Court’s decision to set an upper limit on 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 attempt to strengthen the protection of the fundamental rights of the detained person by setting a maximum period for the detention of persons subject to deportation orders. However, the Constitutional Court’s decision stresses 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 period necessary.” The overall purpose of the decision is that “detention” in the “Immigration Control Act” should be limited to a “temporary measure,” and that the degree of restriction on the detained person’s freedom should not be excessive compared with the “public interest” sought. In this light, the basic detention limit of 18 months and the maximum of 36 months proposed in the legislative notice are far too long. Did the Ministry of Justice itself not reveal that the average detention period in immigration detention centers “barely exceeds ten days” and that long-term detention of more than a year is rare?
Furthermore, the legislative notice provides that in specified cases, the detention period may be extended to 36 months, or 3 years, if it is found to be connected with specified laws such as the National Security Act and the Anti-Terrorism Act. The problem is that this provision does not require a conviction by a court, and even when no indictment has been filed or the prosecution’s decision is suspended, and in some cases even during an investigation, a foreigner can be detained for a long period based solely on the judgment of the immigration authorities, and this period is not included in the detention period in criminal cases. It opens the way to detaining foreigners for a long time without a court order by exploiting people’s anxiety about national security. In addition, the same applies to a person sentenced to imprisonment for more than one year for crimes specified by a Ministry of Justice ordinance. Even if they have served their sentence and been released, they can be detained again for up to 3 years in an immigration detention center, at the discretion of the Minister of Justice alone. Even if they receive a probation ruling from the court, instead of preparing for an appeal trial in a non-detained state, they must again be confined to an immigration detention center.
This reminds us of the “conditional release system” under President Chun Doo-hwan, in which habitual offenders were returned to a probation office after completing their sentences. Although a clause was attached stating “in cases where extradition is impossible because of non-cooperation,” the judgment on this matter is also left to the Ministry of Justice. Like the “conditional release system,” which was criticized as “cumulative imprisonment,” even if a person completes the sentence and is released, the bill allows the possibility that the person is released only temporarily to be detained again, which may temporarily silence public criticism of long-term detention.
Second, Article 63-3 of the legislative notice provides that a foreigner released from detention can be detained again with the detention period reset from the beginning. This opens the way for foreigners who have already been detained for an excessive period to be detained again based on the arbitrary judgment of the immigration authorities, which may lead to repeated re-detention to temporarily suppress public criticism of long-term detention. The Constitutional Court gave examples and proposed concrete measures that could largely prevent a released foreigner from absconding or committing additional crimes, but no legislative alternatives are in sight, and only additional requirements for re-detention are added.
Finally, the Ministry of Justice plans to establish a body called the “Review Committee for Detained Foreigners” to independently review and decide matters concerning the legality, validity, and necessity of “detention.” However, according to the legislative notice, the chair of the “Review Committee for Detained 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 nine members, civil servants are included, and the civilian members are also filled with people desired by the Ministry of Justice. All members are non-standing, and instead a secretariat will be established, which appears to be run by immigration officials. It is clear that such a body cannot conduct “independent” reviews and decisions, as shown by the similar structures of the existing “Long-term Detained Foreigners Review Committee” and the “Refugee Committees” currently in operation. Moreover, the Constitutional Court ordered the establishment of a “supervisory procedure by a neutral institution independent of the implementing agency,” but this directly contradicts that order. Furthermore, after the so-called “shrimp-bending incident,” the Ministry of Justice announced that it would promote legislative improvements to “have the judiciary or other third-party institutions determine the appropriateness of starting and extending detention,” which is a major retreat compared with this announcement.
For these reasons, we demand the immediate withdrawal of this legislative notice. The Ministry of Justice should immediately stop pushing the legislative notice, whose contents directly contradict the spirit of the Constitutional Court’s decision, and should firmly uphold the intent of the Constitutional Court’s decision to strengthen the fundamental rights of foreigners.
Today is the “World Day of Migrants and Refugees” designated by the South Korean government. The reason given for establishing the “World Day of Migrants and Refugees” is “to create a social environment in which Korean citizens and resident foreigners can live together by respecting each other’s cultures and traditions.” However, in a country where a law is proposed in a legislative notice that allows detention of up to 3 years without a court order based solely on being a foreigner, 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 the “World Day of Shame for Migrants and Refugees.” The Ministry of Justice must no longer create situations that shame people and must voluntarily withdraw the “legislative notice.”
20 May 2024