Family Reunification Rights of Humanitarian Stay Permit Holders must be guaranteed
- Recommendation to the Minister of Justice to amend <Refugee Act>-
□ The National Human Rights Commission of Korea (hereinafter referred to as ‘NHRCK’) recommended to the Minister of Justice on October 14, 2024, that amendments be made to the ‘Refugee Act’ to allow family reunification for persons granted humanitarian stay permits in Korea.
□ The complainant, a refugee support organization activist, filed a complaint on behalf of humanitarian stay permit holders in Korea, asserting that the lack of recognition of their right to family reunification constitutes a violation of their human rights.
□ The NHRCK's Committee on Human Rights Violations 2 determined that this issue falls under legislative matters and thus dismissed the complaint in accordance with Article 32(1)(1) of the <National Human Rights Commission Act>.
□ However, the Committee considered that the situation in which humanitarian stay permit holders have no choice but to stay in Korea for a long period of time due to reasons that prevent them from returning to their home countries and are separated from their families, such as that of victims, should be reviewed from the perspective of protection and promotion of human rights. It reviewed the relevant policies and legal frameworks under Articles 19(1) and 25(1) of the <National Human Rights Commission Act>.
○ A 'person granted humanitarian stay' stipulated in Article 2 (3) of the Refugee Act is a foreigner who is not a refugee, but who is granted a residence permit by the Minister of Justice as prescribed by the Presidential Decree as a person who has reasonable grounds to believe that his or her life or physical freedom may be significantly violated due to inhumane treatment or punishment, including torture, or other circumstances. The Ministry of Justice's Immigration Statistics Monthly includes humanitarian residence permits in the category of “refugee recognition (protection)” along with refugee recognition.
○ ‘Humanitarian stay grant’ is a “complementary protection status” in light of overseas legislative precedents and international standards, and different countries use different names for this form of protection, such as complementary protection or subsidiary protection. Complementary protection provided to protect those who fall under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights, among other obligations, but not included in the Convention Relating to the Status of Refugees and Korea’s Refugee Act's five grounds for refugee recognition(e.g. civil war). It is understood that the meaning of 'complement' here is an expansion and supplementation of the scope of protection, not an indication that the need for protection is supplementary.
○ Many humanitarian stay permit holders face prolonged or indefinite separation from their families due to ongoing conflicts or human rights abuses in their home countries, making repatriation practically impossible. While the <Refugee Act> provides for family reunification for recognized refugees, it does not contain similar provisions for humanitarian stay permit holders, leaving them without a legal pathway to bring their families to Korea.
○ Not being able to be with family members as 'one human being' means not being able to share emotional, daily, and material care and support, not being able to plan for a common future, and being in an environment where it is difficult to lead a human life.
Therefore, international organizations recognize 'family unity' as a universal right, and the Universal Declaration of Human Rights and major international human rights treaties recognize the family as the natural and fundamental unit of society and grant it the right to state protection. The Constitution of the Republic of Korea also guarantees the right to family life (Article 36, paragraph 1) as a fundamental right.
○ However, similar to refugees, humanitarian residents are likely to stay in Korea for a long period of time or permanently because it is difficult for them to return to their home countries due to prolonged civil wars and human rights violations in their home countries, and Article 37 of the Refugee Act (entry permit for spouses, etc.) only applies to 'refugees', so humanitarian stay permit holders have difficulties in uniting their families. Therefore, it is necessary to ensure that they are treated similarly to refugees so that they can plan for their continued life in Korea in accordance with the purpose of supplementary protection.
□ The NHRCK therefore recommended that the Minister of Justice ensure that humanitarian stay permit holders granted supplementary protection in Korea are treated similarly to recognized refugees so that they can plan for their continued lives in Korea, and that the right to respect for family life is a right that should be guaranteed to all people without discrimination, and that the Refugee Act be amended to provide a basis for recognizing the right of humanitarian residents to family reunification.
