Asylum Seekers Rights Ignored
By Park Si-soo
Staff Reporter
Several asylum seekers here have been held at detention centers for several years without judicial reviews to justify the confinement, triggering claims that their human rights have been ignored.
Human rights activists, lawyers and the United Nations have urged the Korean government to amend its refugee law so that judges can prevent ``unnecessarily prolonged'' detention of those seeking asylum here.
Under the refugee law, the immigration office has the exclusive right to decide whether or not to extend each asylum seeker's confinement.
``The Constitution bans arbitrary detention, regardless of one's legal status, meaning any detention without judicial review can be seen as arbitrary detention,'' said lawyer Kim Jong-chul. ``Under the current law, the immigration office has the sole right to detain asylum seekers as long as it wants without any court intervention. This is a grave human rights infringement.''
For instance, an Iranian has been detained for three years ㅡ the longest detention ㅡ according to human rights activists.
He arrived here in 2005 and was taken to a detention center at the end of the year after being convicted on charges of having taken drugs.
He applied for refugee status, claiming his conversion to Christianity would endanger his life if he returned to his predominantly-Muslim hometown. The immigration office rejected his application in 2006. In response, he filed a lawsuit, but failed in both provincial and appellate courts. The case is now pending at the Supreme Court.
A Ghanaian asylum seeker was set free last year after nearly two years of confinement. The primary reason for his release was his deteriorating health caused by chronic eye disease and a hernia, which, presumably, occurred during detention.
He was detained in 2006 after being caught working at a factory without a working visa. He also applied for refugee status for the same reason as the Iranian, but the immigration office rejected the request. The case is now pending at the Supreme Court. ``It was a nightmare,'' he said.
According to a report released in December by the National Human Rights Commission, detained foreigners live in a 1.84-square-meter cell, with their every move being monitored around the clock. Cumbersome approval procedures are required for medical treatment, exercise and contact with family, the report said. It added that ``even drinking a cup of water is tough for them because faucets for drinking water are installed outside the cells.''
``Detention is an act of restricting one's freedom. Therefore, the immigration law should be upgraded to ensure a court review is taken as a prerequisite for detention,'' the commission advised.
About five or six foreigners are currently being held at the detention centers, according to an immigration official.
After the government signed the Convention Relating to the Status of Refugees in 1992, a growing number of asylum seekers are coming to Korea. Since then, more than 2,133 foreigners have landed here in search of ``persecution-free'' shelter.
The international protocol allows the detention of an asylum seeker. But it is limited to cases where they don't carry or have lost their ID, thus a period of time is needed to confirm their identification; to verify reasons for a refugee application; and the individual's release is expected to threaten national security. It also stipulates that a maximum detention period must be set.
``Basically asylum seekers should not be detained, but if deemed necessary, its duration should be limited,'' the United Nations High Commissioners for Refugees (UNHCR) says. ``We recommend that refugee protection matters should be regulated in a law separate and distinct from the immigration enforcement law, because of the very different purposes of these two types of law.''
In contrast to the immigration law, a judicial review under criminal law is necessary in order to detain Koreans and extend the length of confinement. An arrest warrant has the ability to detain an individual for up to two months once issued. It can be extended up to two times, meaning a warrant cannot restrict one's freedom for more than six months. Of course, courts review every extension if it's necessary to lengthen the period. If the court sees the detention as unnecessary, the individual is immediately released.
A comprehensively upgraded law on detention has been in force since December 2007, under which those detained at civilian hospitals or welfare facilities have the right to ask for a review over whether their detention should be continued. But foreigners are not subject to the law. A senior judge in the Seoul Central District Court said, ``Current immigration law is apparently infringing upon foreigners' human rights.''
In Canada and the United States, detention of asylum seekers is tightly restricted and is subject to court reviews.
Canada's Immigration and Refugee Protection Act permits the detention of asylum seekers. Once detained, the Immigration and Refugee Board must review the necessity of the detention within 48 hours.
If the board decides ``Yes,'' another review takes place within the next seven days. Long-term detainees receive the administrative review every 30 days. Those dissatisfied with the result have the right to ask for a judicial review.
The U.S. Supreme Court ruled in 2001 that the immigration office cannot detain an asylum seeker for longer than six months.