1. IAKL October, 2005 Osaka, Japan Documenting the Undocumented: A Case of Public Interest Lawyering for Undocumented Migrant Workers in Korea

2. Background Oct 26, 1991 Companies with offshore investment were allowed to bring trainees. Dec 28, 1993 Industrial Trainee System was introduced. Aug 17 2004 Employment Permit System was enforced. As of Aug 2005 190,000 undocumented migrant workers are working in Korea. (Ministry of Labor) For about 15 years there have been various cases of alleged human rights violations in the process of arrests, detentions and deportations of undocumented migrant workers. Yet no legal action has been taken until 2004.

3. Provisions & Practices Laws and regulations are against the Constitution & do not meet international standards. - Prohibition of blanket delegation - The principle of clarity of law - Procedural rights - ICCPR, Body of Principles & Standard Minimum Rules Immigration officials even have violated these problematic laws and regulations in their administrative practices. - Almost all the detainees have been arrested without being presented any documents of detention order.(2002 NHRC)

4. Turning Point 2004 HR Committee of the Seoul Bar Association conducted research on the legal system and conditions of detention for foreigners. The final report of the research was submitted as a reference material to a district court handling a detained Nigerian migrant case & to NHRC dealing with Bangladesh migrants' case. District Court decision (still pending in an appeal court): "Detaining a detainee in a punishment cell has no legal ground." NHRC recommendation (explicitly ignored by the MOJ): "The legal ground for arrest of undocumented migrants by immigration officials without warrant or using force is not clear enough."

5. Strategy Decisions, Actions & Their Limitations 1 Comprehensive research on human rights violations in arrests, detentions and deportations of migrants (IOM, practitioners, academics & NGO activists consortium) - Visited 17 detention facilities, made written survey on more than 500 detainees and 100 immigration officials, interviewed more than 100 detainees and are working on comparative legal research. The final report is due this November. - The past reports of NGOs, NHRC and the Seoul Bar almost had little impact on the rules or practices of immigration officials; immigration officials are insisting that with little budget and personnel, they are the ones who are having a hard time; most researchers think that the research is mainly a field research so legal problems are of less importance.

6. Strategy Decisions, Actions & Their Limitations 2 Formation of Korean Forum on Migrants and Refugees (a network of activists, lawyers and scholars interested in human rights of migrants) - Introduced the issue of arrest, detention and deportation of undocumented migrant workers and got attention from the members of the network. The network has also functioned as a forum for information sharing and collecting test cases that can be filed to the court. - NGO activists were too busy to come to the meetings stably and the participants are changing all the time and therefore core activists could not be involved in the forum; some of the NGO activists are dissatisfied since not as many cases as they expected have been dealt with.

7. Strategy Decisions, Actions & Their Limitations 3 Strategic Litigations - Made some civil, constitutional and administrative litigations in order to publicize the issue and to obtain a legal ground for change. - MOJ is not convinced at all either by the district court decision or NHRC’s recommendation. It has been arguing that compared to other countries Korea is doing much better in promoting and protecting human rights of migrants; the Immigration Act is partially revised explicitly stating about detaining a detainee in a punishment cell and using force within detention facilities.

8. Strategy Decisions, Actions & Their Limitations 4 Launching of Korean Forum on International Migration and Asylum (a small non-governmental independent policy group consisted of experts on the issue including a former minister of justice) - Manipulating a comprehensive revision draft of the rules dealing with undocumented migrant workers. The draft is due next February. - Most of the members are interested mainly in making an effective and efficient mechanism or system for immigration, approach the issue of migration and asylum from a ‘national’ policy perspective and therefore they are talking about the management of migration; concerning undocumented migrants their main concern is to reduce the number of the undocumented.

9. Challenges & Dilemmas Many NGOs are insisting that arresting and detaining of undocumented migrants should not be our national policy and that most of the undocumented should be regularized or legalized. Moreover, most of the NGOs are worried that stressing the legal ground for administrative actions may result in worsening the situation concerning the control of undocumented migrants. In fact, that is exactly what the Ministry of Justice did concerning punishment cell detentions and using force within the detention facilities. The Ministry is not saying much but there are rumors that it is doing a thorough comparative legal research to justify using more force in the control of undocumented migrants. In addition, the policy group that has quite a good lobbying power is more interested in the management or reducing the number of the undocumented.

10. Challenges & Dilemmas If you were a Korean public interest lawyer working on the issue, what would you do? If there is a bad law and a bad practice violating even that bad law, is it possible or desirable to address both at the same time? Any other suggestions on the issue?

11. Korea Public Interest Lawyers Group “GONGGAM” “GONGGAM” is the first ever, one and only non-profit full-time public interest lawyers’ group in Korea. “GONGGAM” is financed by “the Fund for Non-Profit Public Interest Lawyer” of the Beautiful Foundation. We work: to develop and nurture a culture of human rights in Korean society by protecting the minority and the underrepresented; to pursue social change through legal channels and action; and to promote public interest lawyering and pro bono. Areas of Practice: Women; Disability; Migrants & Refugees; Poverty & Welfare; and Public Interest Lawyering in General

12. “GONGGAM” Activities during the First Half of 2005 Delivered community outreach program by assigning lawyers to NGOs (13 NGOs) Provided free legal representations in lawsuits, administrative appeal procedures, etc. (53 cases) Provided legal training/education to NGO workers nationwide (22 programs held, 40 NGOs participated) Encouraged & Coordinated law students and legal professionals’ involvement in public interest lawyering/pro bono works (30 GONGGAM interns, 15 SNU interns and 5 out of 10 major Korean law firms) Published law articles on the flaws of current policies/regulations on the socially marginalized, Presented guidelines on policy revisions, & Produced legal training manual for NGO workers (37 documents) Promoted International Cooperation for further development of public interest lawyering (UNHCR, IOM, NYU, Harvard, etc.)

13. Proposal for IAKL-GONGGAM Public Interest Law Fellowship “The IAKL objectives include fostering the rights of Koreans around the world…The IAKL plans to move ahead with these objectives.” IAKL-GONGGAM Public Interest Law Fellowship is to be approved by the IAKL General Assembly. Through PIL Fellowship given to member(s) of GONGGAM, IAKL will participate in writing a new history of public interest lawyering in Korea. Any member of the IAKL can join IAKL-GONGGAM PIL Fellowship Club by donating just more than $10/month or $120/year and help GONGGAM’s unique and precious experiment survive. The IAKL can donate the same amount as the Club donates as matching fund to member(s) of GONGGAM making the Fellowship the IAKL’s main program.

14. Proposal for IAKL-GONGGAM Public Interest Law Fellowship “The IAKL objectives include… with the mutual assistance of members, promoting the legal culture… concentrating on strengthening relations, promoting communications, providing information and resource exchange” IAKL-GONGGAM PIL Fellow is to work as a coordinator and main provider of information and experience exchange in public interest lawyering among members of the IAKL. The Fellow is to work for the most vulnerable people inside and/or outside of Korea in the name of “IAKL-GONGGAM PIL Fellow” unless it is not appropriate. The Fellow is to inform the members of the IAKL of his/her activities as often as possible and is to present an annual report and a law article related to his/her activities at the IAKL annual conference.