Pill Kyu Hwang Korean Public Interest Lawyers Group

Pill Kyu Hwang Korean Public Interest Lawyers Group GONGGAM

Countries/Territories in East Asia and the Pacific Korean Public Interest Lawyers Group GONGGAM

Countries/Territories in East Asia ¢ “Eastern Asia” (UN DESA Statistics Division) China, Hong Kong, Japan, Macao, Mongolia, North Korea, South Korea ¢ UNHCR Data & UN Population Division China Hong Kong Japan Ratification of Refugee Convention X - No. of Refugees in 2007 301, 083 101 1, 794 - (300, 897 Vietnamese) (20 Somalis) (975 Vietnamese) 1, 312, 979 7, 507 127, 897 Population in 2005 (thousands) Macao Mongolia North Korea - - 5 - (5 Chinese) 473 2, 581 South Korea X 93 (30 Burmese) 23, 616 47, 870 Korean Public Interest Lawyers Group GONGGAM

Common Characteristics of Refugee Situation in East Asia (Hong Kong, Japan & South Korea) ¢ Legalistic Approach (v. Social and/or Political Approach) ¢ Individual Refugees (v. Refugees in Mass-Influx) ¢ National Solution (v. Regional Solution) ¢ Minimal No. of Refugees in Relation to Size of Economy Korean Public Interest Lawyers Group GONGGAM

Common Challenges for Refugee Protection in East Asia ¢ Asylum seekers - No work permit & no/little provision of social assistance - Delays in RSD - No institutionalized legal aid - Appeals dealt with by the same entity in charge of initial decisions - Narrow interpretation of “well-founded fear of persecution” & “an unusually high standard of proof” - Indefinite detention ¢ (Recognized) Refugees - No/little program for social integration or social and legal protection Korean Public Interest Lawyers Group GONGGAM

Recent Development of Refugee Protection in South Korean Public Interest Lawyers Group GONGGAM

Refugee Issues in South Korea Before the Ratification of the Refugee Convention ¢ - - ¢ - The United Nation Korean Reconstruction Agency (UNKRA: 1950 -1960) Established in 1950 in order to undertake relief and rehabilitation programs in Korea Ceased operating in 1959, & liquidation completed in 1960. Political Asylum Seekers (1960 s ~ 1980 s) Pilots from China (PRC) sent to Taiwan in 1961, 1982, 1983, 1985 & 1986 Asylum seekers in Panmunjom sent to the U. S. in 1981, 1984 & 1989 (with the UNHCR intervention) Vietnamese Refugees (1975 ~ 1993) 3, 000 Vietnamese refugees received from 1975 to 1989 By 1993, 2, 400 resettled in the U. S. , New Zealand, Canada, France, the Netherlands, etc. ; 600 settled in South Korea; & the relief center closed Korean Public Interest Lawyers Group GONGGAM

Towards the Ratification of the Refugee Convention ¢ - - ¢ - The motion regarding the ratification of the Refugee Protocol in 1985 Submitted by the Government in 1985 Discussed in the Committee on Foreign Affairs of the National Assembly in 1986 Abandoned with the term expiration of the MPs in 1988 The motion regarding the ratification of the Refugee Convention & Protocol in 1992 Submitted by the Government on 2 July 1992 Adopted by the Committee on Foreign Affairs and Unification of the National Assembly on 2 November 1992 Adopted by the Plenary Session of the National Assembly on 11 November 1992 (with the reservation on Article 7) The Immigration Control Act revised on 10 December 1993 Korean Public Interest Lawyers Group GONGGAM

1951 Convention relating to the Status of Refugees Article 1 A(2), as amended by the 1967 Protocol The term ‘refugee’ shall apply to any person who, - owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country: or who, not having a nationality and being outside the country of his former habitual residence… is unable or owing to such fear, is unwilling to return to it. ¢

Overview of Refugee Situation in South Korea ¢ General Procedure for Refugee Recognition: 1 st Decision: Seoul Immigration Office ( Seoul Administrative Court ¢ Appeal : Minister of Justice) Seoul High Court Supreme Court ) Ministry of Justice Statistics 2010년 10 월 31일 현재 수 신청 수 Applicants Recognized Granted Humanitarian Status Rejected Withdrawn Pending 2, 795 217 131 1, 432 530 385 ‘ 94 ‘ 95 ‘ 96 ‘ 97 ‘ 98 ‘ 99 ‘ 00 ‘ 01 ‘ 02 ‘ 03 ‘ 04 ‘ 05 ‘ 06 ‘ 07 ‘ 08 ‘ 09 5 2 4 12 26 4 43 37 34 84 148 410 278 717 364 324 Korean Public Interest Lawyers Group GONGGAM

UN Recommendations on Refugee Situation in South Korea ¢ UN Committee on Economic, Social & Cultural Rights (2009) “The Committee recommends … (a) providing the adequate resources …; (b) standardizing asylum procedures …” ¢ UN Human Rights Council Universal Periodic Review (2008) Korea is recommended “to implement the Refugee Convention, and ensure that refugee recognition procedures be improved in line with international refugee law. ” ¢ UN Committee on the Elimination of Racial Discrimination (2007) “The Committee notes with concern … a complex procedure and long delays in the decision-making process on asylum claims. ” “The Committee recommends … that asylum seekers and persons granted humanitarian protection be allowed to work, and that comprehensive measures be adopted in order to facilitate the integration of refugees in Korean society. ” - Korean Public Interest Lawyers Group GONGGAM

Recent Development in Jurisprudence - Refugee Recognition under the Immigration Control Act Step 1: Identifying a refugee under the Refugee Convention Step 2: Exercising authorities’ discretion for granting asylum ¢ No clear standard concerning burden of proof or standard of proof ¢ Persecution: “threat to life or physical freedom” ¢ MOJ insisting on lack of ‘good faith’ in every refugee sur place case without exception; Courts denying the requirement of ‘good faith’ but actually applying it in their judgments ¢ Criteria for denying refugee status: genuine passports, reason for arriving Korea, economic activities in Korea, timing of submitting refugee claims, family members without persecution in home countries, etc. ¢ - “threat to life or Korean Public Interest Lawyers Group GONGGAM

Initial Work by the Civil Society for Refugee Protection (~2007) ¢ - Asylum Seeker Registration (~2004) UNHCR in cooperation with Minbyun–Lawyers for a Democratic Society Survey on the Human Rights Condition of Asylum Seekers & Refugees (2004) Good Friends, Minbyun–Lawyers for a Democratic Society & The Refuge PNAN ¢ Parliamentary Human Rights Forum on the Refugee Situation & the Reform of the Refugee System (2005) ¢ National Human Rights Commission Public Hearing & Recommendation on Refugee Protection (2005 & 2006) ¢ Formation of Refugee NGO Network & Initial Research and Forum on the Enactment of a New Refugee Act (2006~2007) The Refugee PNAN, Amnesty International, GONGGAM & some individuals - Korean Public Interest Lawyers Group GONGGAM

Civil Society Initiative towards a New Refugee Act (2008~2010) ¢ - ¢ - Preparation of a draft bill (2008~2009) Forum for Refugee Policy Reform (The Refuge PNAN, NANCEN, CLF, BKL Pro Bono Committee, GONGGAM, Amnesty International and some individuals with the UNHCR and the NHRI as observers) Field research on human rights situation of refugees (2008) Forum for Refugee Policy Reform supported by the NHRI Public hearings (2008) By Seoul Bar Association & Parliamentary Human Rights Forum - Formal legislation petition of the draft bill (2009) By Seoul Bar Association in March 2009 ¢ Introduction of the draft bill to the National Assembly on 25 May 2009 by 24 MPs ¢ Korean Public Interest Lawyers Group GONGGAM

Legal Assistance for Asylum Seekers (1999~2010) ¢ Legal assistance for asylum seeker started by Minbyun and PNAN (1999~) ¢ Legal representation actively provided by CLF & GONGGAM (2005~) CLF: 10 lawyers 30 -40 cases / GONGGAM 3 lawyers 20 -30 (concluded) cases - ¢ ¢ - Lawyers’ Group for Legal Assistance for Refugees, Seoul Bar Association (2009~) 50 lawyers 150 cases BKL Pro Bono Committee (2009~) 10 lawyers 20 -30 cases ¢ PNAN, NANCEN, Global Legal Clinic of the Korea University, Legal Aid Corporation, etc. providing legal assistance ¢ FUNDING: UNHCR, Korean Bar Foundation, Legal Aid by Court, etc. Korean Public Interest Lawyers Group GONGGAM

Revision of the Immigration Control Act in Dec. 2008 ¢ Time limit for filing an appeal: 7 days 14 days after being rejected ¢ “Government shall make efforts to ensure that recognized refugees be guaranteed the status and treatment stipulated in the Refugee Convention. ” ¢ Explicit provision of humanitarian stay permit ¢ Possible work permit for refugee claimants after 1 year from application and those granted humanitarian stay permit ¢ Possible refugee assistance facilities – Korean language education & career counseling; Social adaptation training & settlement assistance; Medical assistance; and Others needed for assistance ¢ The principle of reciprocity not applied to refugees Korean Public Interest Lawyers Group GONGGAM

Contents of the Draft Bill of Act on the Status and Treatment of Refugees, etc. ¢ General - Explicit provision of the definition of refugees, refugee claimants & humanitarian stay permit - Principle of non-refoulement without exception ¢ Substantive Rights of Refugee Claimants - Explicit provision of residence status of refugee claimants - Guarantee of decent living for refugee claimants: living allowances/work permit Korean Public Interest Lawyers Group GONGGAM

Contents of the Draft Bill of Act on the Status and Treatment of Refugees, etc. ¢ Procedural Rights of Refugee Claimants - Procedural Guarantees: Access to information; Refugee claim procedures at ports; Limited review period; Right to counsel; Lowered burden and standard of proof; Restricted detention; Right to oral statement in appeals; Independent appeal body; Same procedural guarantees for humanitarian stay permit ¢ Rights of Recognized Refugees - Protection of refugee rights stipulated in the Refugee Convention Provision of family reunification & possible resettlement Same treatment as refugees for those granted humanitarian stay permit except for immigration control - Korean Public Interest Lawyers Group GONGGAM

Recent Development after the Introduction of the Refugee Bill ¢ - - ¢ Legislation & Judiciary Committee on 11 Nov. 2009 Need for 1) a through review regarding the possibility of mass influx of refugees & economic migrants and 2) a public hearing expressed by the expert 1 st Sub-Committee on Bill Examination of the Legislation & Judiciary Committee on 5 April 2010 Concerns raised regarding 1) mass influx of refugees & economic migrants and 2) increased legal & economic burden of the Government Consensus reached on the need for a new refugee act & a public hearing Legislation & Judiciary Committee Public Hearing to be held on 24 Nov. 2010 Korean Public Interest Lawyers Group GONGGAM

Challenges Ahead & Need for a More Systemized Approach by Civil Society ¢ Making the new Refugee Act more than a mere decorative or declaratory legislation ¢ Overcoming the fear of the possibility of mass influx of refugees & economic migrants & increased legal & economic burden of the Government ¢ Mobilizing a more systemized & focused approach towards the enactment of the new refugee act starting with the preparation of the National Assembly public hearing Korean Public Interest Lawyers Group GONGGAM