FIFTH CONFERENCE OF LAWYERS IN ASIA-PACIFIC (COLAP V) September 2010 Manila, Philippines Legal Issues Concerning Migrants in Korea & Need for International Legal Network Pillkyu Hwang

Human Rights Situation of Migrants in Korea: Attitude of Korean Laws & Institutions towards Migrants

Basis of the Korean policy towards Migrants Excessive Statism & Exclusive Nationalism (1) Assimilation & selective reception of marriage migrants and migrants of Korean origin, & reception of highly skilled labor (2) Strict control and exclusion of low-skilled labor & undocumented migrants

Foreigner “Foreigner”: A person who is not a national of the Republic of Korea (Nationality Act Article 3(1)) “Foreigner”: Any person who has no nationality of the Republic of Korea (Immigration Control Act 2(ii)) “The Status of aliens shall be guaranteed as prescribed by international law and treaties.” (Constitution Article 6(2)) “Aliens can be the subjects of Basic Rights.”; “Social Basic Rights … should be recognized only to nationals, … for civil Basic Rights … it is reasonable to recognize aliens as the subjects of the Basic Rights.” (Constitutional Court)

Foreigners in Korea “The term “foreigner in Korea” is a person who does not have a Korean nationality and, with the purpose to reside, is legally staying in Korea.” (Basic Act on the Treatment of Aliens in Korea Article 2(i)) “In order to efficiently set up the basic plan, the Minister of Justice shall carry out the following works. 1. … investigation of actual conditions of illegally residing foreigners (Basic Act on the Treatment of Aliens in Korea Article 9(1))

Foreigner Workers “Foreigner Worker” in this Act is a person who is having no nationality of the Republic of Korea, that is providing or ready to provide his or her service at a workplace in order to obtain their income. (Act on Foreign Workers Employment Etc. Article 2) According to the Enforcement Decree of the Act on Foreign Workers Employment Etc., most of migrant workers are excluded form the application of the Act.

Foreigner Workers Industrial trainees are to obtain skill and knowledge and therefore they are not workers prescribed in the Labor Standards Act or the Trade Union Act. (Ministry of Labor Regulation 1994) Industrial trainees are also involved in actual labor relations, and therefore there is no reasonable ground for denying them the main labor conditions guaranteed by the Labor Standards Act. (Constitutional Court 2007) Since the Immigration Control Act strictly limits illegally residing foreigners from working in Korea and the law does not provide them with legitimate grounds of employment, which guarantee labor conditions, illegal residing workers are not eligible to join labor unions. (Seoul Administrative Court 2006) If illegally residing foreigners are workers, they can also form a trade union. The Immigration Control Act is only to prohibit foreigners without work permits from employment, but not to prohibit them from forming a trade union in order to improve their working conditions. (Seoul Higher Court 2007)

Foreigner Workers Migrant Workers under Employment Permit System Undocumented Migrant Workers National PensionReciprocity / Lump-sum refund X National Health Insurance OX Employment Insurance O (only when insured voluntarily) X Industrial Accident Compensation Insurance O △ Guarantee of Basic Livelihood X (with some exceptions)O Other Social Welfare Services △△

Multicultural Family “Multicultural Family” is one of the following families A. Family with a foreign spouse married to a Korean and a Korean national from birth B. Family with a naturalized person and a Korean national from birth (Act for Assistance to Multicultural Families Article 2(i))

Overseas Koreans The term “overseas Korean“ in this Act means a person who falls under any of the following subparagraphs: 2. A person prescribed by the Presidential Decree of those who have held the nationality of the Republic of Korea … or of their lineal descendants, who obtains the nationality of a foreign country (Act on the Immigration and Legal Status of Overseas Koreans Article 2(ii)) … Overseas Koreans with foreigner nationalities (F-4) … are not restricted in their activities regardless of their residence status with the following exceptions … 1. Unskilled Labor (Enforcement Decree of the Immigration Control Act Article 27-2(3)) Overseas Koreans with foreigner nationalities in countries frequently producing illegally residing foreigners (China, Russia, etc. ) - More than 1 year employment in a company which was established more than 3 years ago with annual export and import worth more than 01. million USD - More than 1 year employment in a company which invested more than o.5 million USD to Korea (Ministry of Justice Regulation on Countries Frequently Producing Illegally Residing Foreigners)

Human Body Any person who is arrested or detained, shall have the right to request the court to review the legality of the arrest or detention. (Constitution Article 12(6)) Constitution Article 12(6) shall be applied at least to the cases where any type of authorities exercising public power have limited ‘the physical freedom’ by way of ‘arrest ’ or ‘detention’. (Constitutional Court 2004) “Detainee” is a person detained against his/her will in a medical, welfare or detention facility managed by State, local government, public corporation, individual, non-governmental organization, etc. However, … this excludes those detained under the Immigration Control Act. (Harbeas Corpus Act Article 2(1))

Political Activities No foreigner sojourning in the Republic of Korea shall engage in any political activity with the exception of cases as provided by this Act or other statutes. (Immigration Control Act Article 17(2)) The Minister of Justice shall, … deliver directly, or through the head of the office or branch office, to the relevant foreigner a written order to suspend activities, indicating … that, if failed to do so, such measures as a compulsory deportation are to be taken, and other necessary matters thereon. (Enforcement Decree of the Immigration Control Act) A Bangladesh religious organization sent money to the political parties in their own country, and for this reason, some related persons were deported. (“First case of anti-Korean Islamic Organization unmasked”, Yonhap 2004)

Administrative Procedures The purpose of this Act is to attain fairness, transparency, and confidence in administration, and to protect the rights and interests of citizens, encouraging citizens' participation in administration by stipulating the common matters regarding administrative procedures. (Administrative Procedures Act Article 1) This Act shall not apply to the matters falling under any of the following subparagraphs. 9. … entry of departure of foreigners, recognition of refugee status (Administrative Procedures Act Article 3(2)) In this deportation order, even though defendant did not present the reason for the disposition notify the appeal procedures, this cannot mean that the disposition is illegal. (Seoul Administrative Court 2005)

Detention If any public official of the State or local government finds, in the course of carrying out his duties, a person falling under any of subparagraphs of Article 46 (1), or a person deemed to be in contravention of this Act, the official shall without delay inform the head of office or branch office or the head of the foreigner detention center. (Immigration Control Act Article 84) Notice of the ground of arrest when a foreigner is arrested: More than 60% - No notice (National Human Rights Commission 2005,2007, 2008)

Human Rights Violations in the process of labor migration Excessive informal cost of migration Lack of information on formal procedures, smuggling, and limits on choice of employment Limits on equal opportunity for employment Problems in right to family unification and children’s rights Possibility of human rights violations due to irregular migration Threatened livelihood within the home countries, absence of social security, and lack of education and employment opportunity

Human Rights Violations in the process of marriage migration Violation of the rights of free choice regarding marriage Customs similar to human trafficking, subordination and slavery Violation of the rights to personal freedom Violence towards females Violation of the rights to equality and family unification Discrimination in approach to legislative procedure Threatened livelihood within the home countries, absence of social security, and lack of education and employment opportunity

Need for Transnational Legal Cooperation Active Exchange and Reflection of Opinion on Legislative Improvement - Migrants’ rights eventually materialize as laws and institutions - The voice of the primarily and most directly affected migrants must be reflected - The creation of a forum for discussion on legal reforms should be created

Need for Transnational Legal Cooperation Strengthening International Cooperation on Addressing Problems of Migration Process - Migration process raises a number of human rights and legal issues involving more than 2 countries - The problems arise in sending countries but the effect reaches receiving countries - Joint action is needed not only in aspects of policy but also in solving specific cases

Need for Transnational Legal Cooperation Strategic Alliance with various Stakeholders - Lawyer organization, NGOs & labor unions - Academics & Activists - Embassies - National Human Rights Institutions

“A society is defined by what it excludes.”