Alternatives to Detention for Asylum Seekers in Long-Term Detention needs to be actively implemented
- Recommendation to the Minister of Justice to improve the system, including temporarily removing protection under the Immigration Act
□ On October 2, 2024, the National Human Rights Commission of Korea (hereinafter ‘NHRCK’) recommended that the Minister of Justice actively implement alternatives to detention, such as temporary release from detention under Article 65 of the Immigration Act, for persons who have applied for refugee recognition or are in the process of administrative appeals and administrative proceedings related to refugee recognition, in order to minimize long-term detention and prevent such detention of asylum seekers, which is at odds with the purpose of detention under the Immigration Act.
□ The complainant is a protected alien of ○○○ ○○ nationality and applied for refugee status lest he could be subject to forced recruitment if he returned to his home country. However, the Director of the Immigration Processing Center (hereinafter referred to as the 'respondent') did not take any action but kept telling the complainant to go back to his home country, while he had to be repatriated to a third country should he could not stay in Korea. And the complainant filed a complaint to the NHRCK, claiming that his human rights were violated due to a long-term detention at the Immigration Processing Center (hereinafter referred to as the 'respondent organization').
□ The respondent responded that the complainant could be repatriated to a country other than his home country in accordance with Article 64 (2) of the Immigration Act, but that he must obtain a visa for the country he wishes to enter in accordance with the immigration policy of the country, and that airlines also judge and approve passengers' boarding in accordance with the immigration policy, so it may not be possible to issue a ticket in the first place.
□ The NHRCK’s Committee on Human Rights Violation 2 (Subcommittee Chair: Standing Commissioner Lee Chung-sang) ruled as follows in response to the complaint.
○ According to the Immigration Act, the term “detention” means “enforcement activities taking into custody or impounding a person having reasonable grounds to be suspected of falling under persons subject to deportation under the subparagraphs of Article 46 (1) at an immigration detention unit, immigration detention center or other place designated by the Minister of Justice;” (Article 2 (11) of the Immigration Act). Therefore, the respondent's detention measures for detained foreigners are temporary and provisional coercive measures taken to secure the enforcement of a deportation order when it is not possible to enforce the deportation order immediately after it is issued, and by its very nature, it can only be justified if it is accepted within a reasonable period of time necessary to enforce the deportation order.
○ However, the complainant is a person in proceedings following a refugee refusal decision and the deportation order cannot be enforced until the relevant proceedings are concluded (Article 62(4) of the Immigration Act), and even if the complainant were to enforce his departure to a third country other than his home country to which he wishes to be returned, the timing of which is unpredictable, as evidenced by the respondent's statement, which would likely prolong the period of detention for the complainant, who has already been in the custody of the respondent organization for more than 600 days.
○ Without any consideration in this regard, the respondent is detaining the complainant until he can be repatriated, which may constitute an arbitrary detention, as it is difficult to believe that the grounds for detention against deportation will continue to be valid throughout the entire period of detention, even if the deportation order cannot be enforced within a reasonable period of time, and may therefore be considered beyond the limits of temporary and provisional coercive measures. Considering the physical and mental harm caused by being detained in an asylum center, this can be reasonably seen as a measure that unduly restricts the complainant's right to the pursuit of happiness and physical liberty, which is inconsistent with Article 9 (right to bodily liberty and security) of the International Covenant on Civil and Political Rights and Articles 10 (human worth and dignity) and 12 (personal liberty) of the Constitution of the Republic of Korea.
○ Article 65 of the Immigration Act and Article 79 of the Enforcement Decree of the same Act (Temporary Release from Detention) stipulate that a detainee can be released from detention on conditions that may include deposit of a bond and restrictions on his or her residence, taking into consideration the circumstancess of such detainee. The above system can also be utilized to prevent long-term detention for deportable aliens, such as the complainant, who are appealing a refugee examination or refugee refusal decision rebuttal, and therefore, it is necessary to actively implement alternatives to detention, such as temporary release from detention for asylum seekers, such as the complainant, who have already been granted detention.
□ The NHRCK therefore recommended that the Minister of Justice, who is in charge of general immigration control and alien protection, actively implement alternatives to detention, such as temporary release from detention, for detainees who have applied for refugee recognition or are in the process of appealing against refugee denials during the long term detention.
