PSPD People's Solidarity for Participatory Democracy
Race and Rights of Refugees in South Korea
- 2001.10.31 (00:00:00)
Race and Rights of Refugees in South Korea
Chang, Bok-Hee & Kim, Gi-Youn
(Committee on Legal Aid for Refugees, MINBYUN-Lawyers for a Democratic Society)
After South Korea signed 'The 1951 Convention Relating the Status of Refugees' in 1992, as of this May, 110 foreigners have applied for refugee status to the Korean government. The number of foreigners applying for such status is still growing. However, presently only one among these people has been officially granted refugee status by the Korea government. Compared to last year's average 19.9% of granted refugee status in the international community, the South Korean government's status granting record is extremely low.
It is not to say that the granting rate itself is the sole most important thing. However, as aforementioned, rather than the actual granting, the importance lies on procuring fair and transparent examination procedures with rational decisions when considering individuals for refugee status. In this light, unreasonable immigration regulations and procedures related to the status granting examinations are among the biggest problems of the South Korean government's refugee policies. Moreover, it is undeniable that underneath these regulations lies a culture of ethnocentrism, exclusive nationalism, and xenophobia that takes root in a homogeneous ethnicity.
A Homogeneous Ethnicity, Xenophobia, and Refugees
A majority of Koreans might think that racial discrimination does not stand as a trait of the Korean society. However, we believe such discrimination is pervasive throughout the Korean community. From ethnic Chinese who have been settled in South Korea for about 100 years, migrant workers, to even Koreans with mixed blood have been faced with cruel discrimination. Moreover, refugees are not considered eligible for human rights protection, and even there exists xenophobic tendencies caused by irrational perceptions such as fear of the increase of a mixed blood population due to interracial marriages of both foreigners and refugees with Koreans.
Koreans have been reluctant to accept "Foreigners" into their community on the grounds that they are of different ethnicity, race, and nationality without due consideration of their mentality, capacity, and situation. Racial discrimination amounts to only a self-assuring selfishness that springs from a feeling of superiority by demeaning the other person for any reason given. The Korean people feel wronged and angered when being discriminated abroad for their race and nationality, yet in the light of their discrimination against foreigners, it is clear that the Koreans possess a double-sided conscience.
Problems in the Refugee Status Determination System
Not only in the Korean society, but in each society of the world as well, racial and gender discrimination, along with authoritarian and xenophobic tendencies are pervasive, and these, in fact, deprive human beings of their dignity and freedom. The apathetic and even hostile disposition towards refugees and asylum-seekers is conspicuous in the attitudes of the government of the host country, media and general public, and this tendency is made evident by the racism and xenophobia and passive domestic law towards the refugees. Each country's system regarding either entry permissions or status granting procedures is being misused so as to hinder entry admissions or even the status application filings. Such misapplication of regulations spreads to other forms of ill treatment such as discriminatory detentions, limited benefits, and restriction on free mobility, education, and labor rights. Under such system, even if the applicant should be eligible for refugee status from the host country, the refugee would find himself alienated and excluded from most social benefits.
Notwithstanding that Korea, as a member of the Executive Committee for UNHCR(EXCOM), has the international obligation of providing refugees with active policies that secure and guarantee their rights, the Korean government tends to shirk away from the plight of the refugees. Although the Korean government claims its refugee status determining system to be in line with the international standards, it is clear that such system has many flaws and limitations as stated below.
(1) Excessive Imposition of Proof Responsibility
The Korean government gives lack of substantive proof of qualification as the foremost reason for refusing to grant refugee status to asylum-seekers. The government seems to have a strong prejudice that in most cases, applicants have entered the country for economic reasons and they seek for refugee status as a means to lengthen their residing period as their legal staying period has expired. The actuality of the Korean government as imposing excessive burden of proof on the asylum-seekers is shown by the fact that among the applicants there are five recognized as mandate refugees by the UNHCR and that most of applicants are from countries such as Afghanistan, DR Congo, Iraq, and the like, where it is politically unstable and where human rights are pervasively violated.
In most situations people who have fled from oppression and seek for asylum barely carry around any necessities, an identification card or document in their possession. Therefore, it is international custom to give the benefit of the doubt to an asylum-seeker, if the given claim is coherent, convincing, and trustworthy and there is no considerable reason that goes against it, even if the necessary evidence to prove the claim is insufficient. However, the Korean government does not share the burden of proof with the applicant, thus the asylum-seeker has the responsibility to present tangible evidence to be eligible as a refugee.
In the Committee on Economic, Social and Cultural Rights(CESCR) held in last April in regards to the 2nd periodic report by the Korean government on the implementation of the International Covenant on Economic, Social and Cultural Rights, there was an expressed concern on the strict regulations practiced by the Korean government in determining refugee status.
1994 1995 1996 1997 1998 1999 2000 2001 Total
Applied 5 3 4 12 26 3 44 13 110
Recognized 1 1
Rejected 4 1 1 8 26 1 41
Withdrawn 1 2 3 4 1 1 12
Pending 2 43 11 56
Source: Ministry of Justice
Applied Recognized Rejected Withdrawn Pending
Nigeria 3 2 1
Liberia 4 2 1 1
Rwanda 2 2
Myanmar 21 1 20
Somalia 3 1 2
Afghanistan 5 5
Algeria 18 14 4
Ethiopia 2 1 1
Iraq 3 2 1
Iran 10 8 1 1
DR Congo 26 5 21
Pakistan 4 3 1
Others 9 2 2 5
Total 110 1 41 12 56
Source: Ministry of Justice
(2) Incoherent Criteria for Determining Refugee Status
The governmen's decision to grant the first refugee-status to an asylum-seeker last February has been criticized as an act of a mere political show. The reason for such skepticism lies on the fact that many other applicants with similar background have been rejected. As mentioned above, even on the cases in which the UNHCR has designated as being mandate refugees, the Ministry of Justice has refused to grant them such status arguing there's lack of sufficient evidence. It was hoped that the establishment of the UNHCR branch office in Seoul last April would galvanize the Korean government to take more heed to the plight of the refugees and yet almost nothing has changed since then. The government has been asked constantly to let the UNHCR participate in the Committee for Determining Refugee Status, an inter-government agency, so as to properly establish the standards and the overall process of the eligibility examination and to systematize the administration of the refugees and consequently ensure transparency of the process. However, the government has not shown any plans to cooperate with the UNHCR.
(3) Unreasonable Time limit for Appeals
Applications for refugee status have to be filed within 60 days from the date of entry into the country. Last February the Ministry of Justice suggested the amendment of the Immigration Law to extend of this period to one year. Notwithstanding, the Immigration Law still harbors many problems and shortcomings. There is an opinion that one year rule also violates the 1951 Convention which does not prescribe any limit of the period for application. Moreover, Article 76 (4) of the Immigration Law limits the period for presenting an appeal within 7 days. Obviously, this is an extremely short period for the asylum-seeker to prepare the necessary resource materials. Meanwhile, since both the application and the appeal are reviewed by the same agency, the possibility of a decision to be overturned is quite low. So far, there are no cases in which the refugee status has been granted through an appeal.
(4) Lack of Professionalism of the Agency in Charge
The department within the Ministry of Justice that is in charge of refugee-related matters has been marked by inefficiency. According to the Immigration Law the Justice Minister is in charge of the final decision regarding the refugee eligibility. However, the actual application filing, interviewing, and fact verifying are done by immigration officials working in the Inquiry Department of the Immigration Bureau. As known, the main work of these officials is to keep control over illegal immigrants. Consequently, the concept of human rights is most likely to be remote to these officials when they handle interviews and inquiries of the asylum-seekers.
Meanwhile, the applicants are from different parts of the world, thus, the languages that they speak range from French, Chinese, different languages from African minorities, and several others. Yet, funds to hire interpreting services and solutions to facilitate communication are barely used. The Ministry of Justice argues that it has well-equipped interpreting personnel and that no difficulties have been faced regarding the actual communication with the asylum-seekers. However, in reality, there are many cases in which an applicant has not been able to present his case in a detailed and precise manner due to the meager interpreting services used by the Ministry.
Treatment of the Refugees and Asylum seekers
At present, policy-wise and materially, the government gives barely any aid to asylum seekers. Countries such as Germany and Australia do not allow applicants to work, yet they provide them a limited amount of monetary aid and health care. Such kind of aid is critical in Korea, since the application examination period can last from a minimum of 6?2 months to a maximum of 3 years. The economic and social hardships that these applicants go through this period are hard to ignore.
Even the policy in regards to the material and political support that should be given to a recognized refugee is unclear. The legal position and residence qualifications of a refugee are not stated clearly in the Immigration Law, thus, the rights of a refugee regarding education, labor, and welfare are not unquestionable. Even in the case of the African person, recognized as refugee last February, so far only a foreign registration card (solely for identifying purpose) has been issued. This refugee is known to have not received any welfare benefits, including work placement and health care, in order to lead and maintain a humane life.
The Korean government alleges that the applicants are indeed employed and thus are able to receive welfare benefits guaranteed by their work. Thus, the government argues that there is no special need for them to give these applicants any more benefits in regards to monetary aid and health care. Such treatment reflects that the government is still trapped in its prejudice that the applicants are illegal migrant workers that have entered the country for economic purposes, and through such biased perception they have ignored completely the situation that these applicants live in. This shows clearly the government's lack of effort in understanding the harsh reality of these applicants, making these people live in ever more deteriorated conditions. In reality, in order to survive day by day, many of these applicants try to get any type of job and usually end up working on one-day basis or as a migrant worker. Yet, even after they get such jobs, due to the frequent interviews required by the Ministry of Justice, these applicants have to be absent from their work quite often and eventually get laid off. The government's claim that these people are employed and enjoy welfare benefits is just a mere act of play on words, distorting the reality.
As explained so far, the pursuit of a homogeneous ethnicity based on blood lineage and exclusive nationalism of the Korean society pose as roadblocks on the fair treatment of asylum seekers and refugees and such perceptions are being institutionalized through the refugee-status determination process and related practices. This situation will not change by simply amending the Immigration Law so as to place the national guidelines in line with the international standards. Only acknowledging the deeply-rooted nationalism and xenophobia and overcoming them can achieve a more in-depth improvement.
The time has come to finally overthrow the ethnocentric ideologies. Race, ideology, religion, and ethnicity: these are the actual materialization of antagonistic tendencies all having caused hideous wars at the cost of many lives and the deterioration of the human spirit.
Unfortunately, the Koreans have been slow to admit and acknowledge that such conflict exists in their community. The Koreans may seem to advocate for a 21st century that can achieve an integrated and open community, universality, and a society that respects humanism and cultural diversity. Yet, the Korean nation is one that is still trapped in a bundle of laws and regulations that reflect a nationalistic and ethnocentric mentality. The basic human rights policies that the Korean society adopts towards foreigners and refugees will be the barometers for the treatment that Koreans residing abroad, who can at any time become refugees themselves, receive.