The Commission conducted on-site investigations at four immigration detention centers from July 8 to July 14 2008 on the detention process and treatment of detainees. Based on the findings of the investigation, the Commission recommended that the Ministry of Justice reform the current system to observe due process, reform the mandatory notification requirement to public officials, and prepare a plan for improving the treatment of detainees.
The investigation was conducted to find out the conditions at the detention facilities amid questions as to the lack of improvement in rights violations in the course of arrest and detention. Since March 2008, regulation and crack down of unregistered migrant workers had intensified due to changes in government policy and petitions were increasing alleging human rights violation in the course of detention. Two immigration detention centers that were excluded from investigation at the time of the 2007 on-site investigation of detention centers were included in the investigation. Also, Yeosu Immigration Office was included for investigation for the first time since the fire broke out at the center in 2007.
The investigation method was to conduct surveys, in-depth interviews, and to inspect the facilities at the Hwaseong and Cheongju Immigration Detention Center and Yeosu and Daegu Immigration Office.
On the basis of findings of the investigation, the Commission issued a recommendation to the Minister of Justice as follows:
1) Due process in the detention process:
Survey results revealed that 47.9% of the migrant workers were detained by immigration officers dressed in plain clothes and 37.4% were arbitrarily detained without the officer revealing his/her identity.
Also, 43.0% of the migrant workers were taken from their workplace and 17.9% from their residence. Of those taken from their workplaces, 71.5% answered that the immigration officers entered the workplace without the permission of their employers and 32.3% of those taken from their residence answered that the officers did not disclose their identity and they were detained immediately upon opening the door.
Investigations revealed that 63.4% of the immigration officers failed to present the urgent detention order at the site but presented it after the detention process was complete while moving to or upon arrival at the immigration office. This revealed to be the same for the custody process since 63.4% of the detainees answered that not only were they not presented with any kind of documents but were arbitrarily and forcefully taken without any explanation.
Moreover, 76.4% were not notified of the right to an attorney and other rights relating to relief and 45.3% was not able to communicate properly with immigration officers in the questioning process since interpretation was not provided.
The Commission concluded that since arbitrary inspections, crackdown, and detention of migrant workers put restraints on the liberty of the person, the authority and process pertaining to detention should correspond to criminal due processes and be provided in law. Also offering explanation of the urgent detention order without regard to the probability of flight or resistance only after getting into the transportation vehicle is an act of bodily restraint without due notification of the reason and is in violation of Article 12 Paragraph 5 of the Constitution, Article 9 of the Universal Declaration of Human Rights, Article 9 Paragraph 2 of the International Covenant on Civil and Political Rights, and Article 10 of the U.N. Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and amounts to an illegal arrest under Article 24 of the Criminal Act.
The Commission also concluded that the time for executing crackdowns should be limited in line with Article 125 of the Criminal Procedure Act, Article 8 of the Civil Enforcement Act, Article 306 of the Customs Act, and Article 35 of the Immigration and Refugee Protection Act that restrict execution of orders after sunset.
The Commission, therefore, recommended the following to the Minister of Justice:
1. The Immigration Control Act which provides for the enforcement of detention orders and detention per se that qualifies as an act of bodily restraint amounts to an administrative action and its disposition. As such, it is an authoritative administrative action that needs to comply strictly with the principles of the reservation of law, preponderance of law and proportionality.
2. Articles in the Immigration Control Act that deal with control and regulation are provisions for arbitrary investigations and in no way provides the legal basis for the authority to restrain and arrest that are authoritative administrative actions accompanying force. Thus, the authority and procedure for the regulation and crackdown in relation to immigration control and the supervision of such matters should be provided in law corresponding to criminal justice procedures.
3. In principle, when an immigration officer needs to enter into a third person’s residence or place of business to regulate undocumented migrant workers, clear consent must be obtained from the resident or the manager in advance. When this is not possible, a seizure and search warrant must be obtained from court and execution of any search or crackdown needs to be limited to after sunrise and before sunset.
4. When an immigration officer executes an urgent detention order against a migrant worker, Article 12 Paragraph 5 of the Constitution and relevant provisions in the Criminal Procedure Act must be observed so as to notify of the Miranda Principle and the practice of notifying about the urgent detention order after the fact must be reformed.
2) Due process during the transfer process after detainment
According to the survey, 79.5% of the immigration officers used handcuffs in the process of detaining, 4.5% used police equipments, and 2.9% used electric shock devises and net guns. Also, 48.7% answered that they were held in the patrol car for more than two hours and 27.3% mentioned that they were in pain because they were handcuffed. Moreover, 43.9% said that the patrol car did not leave the site of regulation until the vehicle was completely full.
Four female respondents answered that they felt ashamed sexually as their request to use the bathroom after long hours of waiting in the patrol car was ignored and some immigration officers made sexually offensive jokes in the course of transporting.
The Commission, therefore, recommended that the Minister of Justice amend the practice of using handcuffs which violates human rights such as handcuffing the detainees for a prolonged time and also that guidelines for improvements be made on the use of police equipment and weapons. Furthermore, it was recommended that immigration officers receive sexual harassment training before participating in operations relating to women.
3) Due process during investigation and reform of the notification system:
Investigations into the detention process after transfer to the immigration office revealed that 37.4% of the migrant workers detained found it impossible to communicate since translation service was not provided. On the other hand, 35.1% out of all detainees answered that they experienced no difficulty communicating in Korean throughout the questioning process, which indicates that Korean was used in the detention process even if the detainees could not communicate fluently and sufficiently in Korean. Moreover, 27.8% were asked to sign documents that they did not understand. The detainees were exposed to all kinds of disadvantages due to communication difficulties.
The Commission, therefore, recommended that the Minister of Justice make guidelines for improvement to communications to ensure fairness in the investigation and detention process and observe the Immigration Control Act Enforcement Ordinance in the investigation process by allowing the detainee to read the documents himself or herself and then to sign.
In addition, the mandatory notification to a public official requirement in the Immigration Control Act revealed that due to fear of deportation and other burdens, undocumented migrant workers who suffered from sexual violence, unpaid wages, and other criminal acts or human rights violations experienced serious difficulties in applying for relief to government organizations.
The Commission, therefore, recommended that the Immigration Control Act be amended to clearly state the ‘Relieve First, Notification Later’ principle suspending or discharging the notification requirement for a public official until violations against migrant workers are remedied completely so that rights of the undocumented migrant workers are protected in full.
4) Detention facilities inappropriate for ‘protection’:
Investigations of the four detention centers revealed that, as was the case in the 2007 investigations, movement within the facility was limited to the detention cell so that free access and movement was not possible. For reference, in the United Kingdom the detainees could move outside of the cell and have free access to the outdoor yard, computer room, and library in all cases during the daytime.
Moreover, there were no other activities available except for watching television for the detainees who had no other choice but to stay inside the cell. At the Yeosu Detention Center where the fire broke out in 2007, reconstruction was done from November to December, 2007 to install sprinklers in each cell, but the dual control system for entrance still left room for danger in the case of emergency evacuations.
The Commission held a forum with professionals in related fields, where the findings of the above investigations were presented. It also provided an opportunity to collect public opinion in relation to human rights issues arising from the detention process of undocumented migrant workers and to discuss ways of improvement to the treatment inside the detention centers. Also discussed was the use of the term ‘illegal immigrants,’ which may attribute to a negative image of immigrants as a group.
