📌 Original(korean)
https://docs.google.com/document/d/1qaPoTUD-6dMrS16tSIItyO-Xt1sL4oU7g4EPGrxGuOY/edit?tab=t.0
📌 Background
Contracting States to the Refugee Convention are legally obliged to follow a procedure to determine whether an asylum seeker is a refugee before refusing entry or imposing removal at the border. When a person who arrives at a port of entry wishes to apply for refugee status, the person is allowed to enter the country if the case is referred to the refugee status determination procedure, . After that, the asylum process continues in the place where they reside. However, if a decision is made not to refer them to the refugee status determination procedure (a non-referral decision), the asylum seeker cannot undergo the refugee status determination procedure unless the person challenges the decision through a lawsuit.
Here, asylum seekers who file lawsuits to revoke a non-referral decision and who stay at the airport while applying for asylum are referred to as airport refugees.
📌 Easy to read
On 21 August, the National Human Rights Commission of Korea issued two important recommendations to the Minister of Justice to ensure the protection of human rights and to improve the human rights of asylum seekers in departure waiting rooms. First, the National Human Rights Commission of Korea recommended establishing a detailed practical manual on the procedures for the removal of individuals in departure waiting rooms, and ensuring that these procedures are carried out. Second, it recommended improving the system so that asylum seekers who express their intention to challenge a non-referral decision to the refugee status determination process are not forcibly removed during the period in which they can file a lawsuit to revoke that decision. This recommendation is important because it reaffirms South Korea’s commitment to comply with the principle of non-refoulement, as set out 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 his case, but he faced the risk of forced removal by airline staff, who were receiving orders from the immigration office. During this time, the victim endured harsh verbal abuse from airline staff, who used hateful and abusive language such as “Go back to your country and die, you bastard” and “Why are you causing trouble here?”
Although there was still time for the victim to file a lawsuit to revoke the non-referral decision, removal orders were issued, and when these orders were carried out, the victim faced hateful mistreatment without proper supervision by the authorities. Even so, the National Human Rights Commission of Korea did not recognize this as a human rights violation by the authorities, which is hard to understand.
Since 18 August 2022, the government has been operating a waiting area for departing foreign nationals in order to improve their treatment and ensure their human rights. Therefore, the government should have acknowledged its responsibility for any unlawful human rights violations that occurred during the removal process in that waiting area.
Furthermore, the victim in this case clearly expressed that he could not return to his dangerous country of origin after receiving the decision not to refer him to refugee status determination. However, because he could not obtain legal assistance, the victim was ultimately removed. The current asylum application system often leads to the misuse of non-referral decisions, which means that most asylum seekers who apply at airports are not even given the opportunity to go through the formal refugee status determination process. (According to the Ministry of Justice, the rate of referral to refugee status determination was less than 25.7% in 2023.)
Administrative procedures for challenging non-referral decisions, such as appeals, have become essentially useless. The only remaining option is to file a lawsuit, which is also difficult. Very few asylum seekers are lucky enough to find legal assistance while at the airport. Without a lawyer, it is almost impossible to file a lawsuit or appear before a court. Although immigration offices claim that they help send documents such as petitions that have been submitted, it is practically impossible for asylum seekers to handle on their own the petitions for filing, the payment of litigation fees, the request for legal assistance, and the submission of statements and evidence. Moreover, no guidance or support is provided on how asylum applicants can carry out these procedures by themselves, either inside the departure waiting rooms or through the documents notifying them of the non-referral decision.
The administrative procedure for challenging a decision not to refer refugees, such as administrative appeals, has become practically useless. The only remaining option is to file an administrative lawsuit to challenge the decision. However, this is also extremely difficult. Only a very small number of people at the airport are lucky enough to find a lawyer to help. Without a lawyer, they cannot file a complaint or appear before a court. While the immigration authorities claim that they help send documents such as complaints by mail, it is practically impossible for refugee applicants to handle tasks such as filing a complaint, paying court fees, applying for legal aid, or submitting affidavits and evidence by themselves. Inside the departure waiting room and in the notice of the non-referral decision, no instructions or support are given to asylum applicants on how to proceed with these legal procedures by themselves.
According to the recommendations of the National Human Rights Commission of Korea, the Ministry of Justice must stop unlawful removal attempts that violate the principle of non-refoulement for asylum seekers. The Ministry also needs to ensure that no further human rights violations occur during removal procedures. In addition, it must end the misuse of non-referral decisions and improve the system quickly so that all applicants can have access to legal assistance. The Korea Refugee Rights Network (KORIN) will continue to oppose the unfair treatment of refugees and work to ensure that the rights of “airport refugees” are properly protected.