📌 Original(Korean)
https://docs.google.com/document/d/1qaPoTUD-6dMrS16tSIItyO-Xt1sL4oU7g4EPGrxGuOY/edit?tab=t.0
📌 Background
The contracting states to the Refugee Convention are under a legal obligation to follow a procedure to determine whether an asylum seeker is a refugee before refusing entry or enforcing deportation at the border. When a person arriving at the port of entry wants to apply for refugee status, they are allowed to enter the country if their case is referred for a refugee status determination. After that, the refugee application process continues in the place where they are staying. However, if a decision is made not to refer them to the refugee status determination process (non-referral decision), the asylum seeker cannot undergo the refugee determination process unless they challenge the decision through a lawsuit. Asylum seekers who are litigating to overturn the non-referral decision and are staying at the airport during the process are referred to as ‘airport refugees’.
📌 Easy to Read
On August 21, the National Human Rights Commission of Korea (NHRCK) made two significant recommendations to the Minister of Justice to ensure the protection of the rights and improvement of human rights for asylum seekers in the departure waiting rooms.
First, the NHRCK recommended that a detailed operational manual be created for the procedures involved in deporting individuals in departure waiting rooms, ensuring that these procedures are carried out tasks.
Second, it was recommended to improve the system so that asylum seekers who express their intention to challenge the non-referral decision to the refugee status determination process are not forcibly deported during the period in which they can file a lawsuit to cancel that decision. This recommendation is important as it reaffirms South Korea’s obligation to comply with the principle of non-refoulement, as outlined in Article 33 of the Refugee Convention and Article 3 of the Refugee Act.
In this case, the victim wanted to challenge the decision not to refer their case, but faced the risk of being forcibly deported by airline staff, who were following orders from the immigration office. During this time, the victim endured harsh verbal abuse from the airline staff, who used hateful and offensive language like “Go back to your country and die, you f*ing b” and “Why the hell are you causing trouble here?”
Even though there was still time left for the victim to file a lawsuit to cancel the non-referral decision, deportation orders were issued, and in executing these orders, the victim faced hateful abuse without proper oversight by the authorities. Despite this, the NHRCK did not recognize this as a human rights violation by the authorities, which is difficult to understand.
Since August 18, 2022, the government has started managing and operating the waiting area for departing foreigners to improve their treatment and ensure their human rights. Therefore, the government should have recognized its responsibility for any illegal human rights violations that occurred during the process of carrying out deportations in that waiting area.
Moreover, the victim in this case clearly expressed their inability to return to their dangerous home country after receiving the non-referral decision for refugee status determination. However, due to a lack of access to legal assistance, the victim was ultimately deported. The current asylum application system often results in the abuse of non-referral decisions, meaning that most asylum seekers who apply at airports are not even given the chance to undergo the formal refugee status determination process. (According to the Ministry of Justice, the referral rate for refugee status determination was less than 25.7% in 2023).
Administrative procedures to contest non-referral decisions, like appeals, have basically become useless. The only remaining recourse is filing a lawsuit which is also difficult. Very few asylum seekers are fortunate enough to find legal assistance while in the airport. Without a lawyer, it is nearly impossible to file a lawsuit or appear in court. Although immigration offices claim to assist with sending documents like petitions, it is practically impossible for asylum seekers to personally handle filing petitions, paying litigation fees, applying for legal aid, and submitting testimony and evidence. Furthermore, there is no guidance or support provided on how asylum seekers can carry out these procedures on their own within the departure waiting rooms or through the non-referral decision notification documents.
The administrative procedure to challenge a non-referral decision for refugees, like administrative appeals, has become practically useless. The only remaining option is to file an administrative lawsuit to challenge the decision’s legality. However, this is also very difficult. Only a very few people at the airport are lucky enough to find a lawyer for help. Without a lawyer, they cannot submit a complaint or appear in court. While immigration authorities claim to assist with mailing documents like complaints, it is practically impossible for refugee applicants to handle tasks like filing a complaint, paying court fees, applying for legal aid, or submitting statements and evidence themselves. Inside the waiting room for departure and in the non-referral decision notice, there are no instructions or support provided on how to proceed with these legal processes on their own.
Following the NHRCK’s recommendations, the Ministry of Justice must stop illegal deportation attempts that violate the principle of non-refoulement for asylum seekers. The Ministry also needs to ensure that no more human rights abuses happen during deportation procedures. Additionally, it must end the misuse of non-referral decisions and quickly improve the system so that all applicants can access legal help. The Korea Refugee Rights Network will continue to oppose unfair treatment of refugees and work to ensure that the rights of “airport refugees” are properly protected.