May 6 2020
NHRCK Calls for a System that Grants Legal Status to Undocumented Long-term Resident Children
-NHRCK presents recommendation that justice ministry establish mechanism that serves children’s best interests-
The National Human Rights Commission of Korea (Chairperson Young-ae Choi) issued a recommendation to the Justice Minister with regard to the petitions over human rights violations resulting from a lack of a mechanism that grants lawful immigration status to undocumented long-term resident children.
Specifically, the NHRCK recommended that the Ministry of Justice suspend forcible deportation of undocumented immigrant children who have resided in Korea for an long period of time, establish a system that grants legal status to those who wish to remain in Korea based on the outcome of the review of their applications, and actively consider whether to provide legal status for these children using processes avaliable under current law or regulations even before the introduction of such mechanism.
Although lacking legal status, the petitioners (age 17 and 18) were born and raised in Korea, use Korean as their mother tongue and have formed their identity receiving formal education in Korea. They will be forcefully deported against their will when the moratorium on deportations is lifted. They filed a petition with the NHRCK, arguing that the forcible deportation constitutes a violation of their fundamental rights.
The Ministry of Justice stated that it placed a moratorium on deporting undocumented immigrants children like the victims until they finish their high school education according to the measures adopted to protect the right to learning of undocumented children and that they will be deported to their country of origin when the reasons for suspension are no longer valid as there is no system available under current law that offers legal status to undocumented children.
Nevertheless, the Ministry of Justice added that the victims may file objections to the deportation orders and apply for a review of their eligibility for resident status under Article 61 of the Immigration Act. The Ministry will then determine whether the victims qualify for resident status considering several factors including: 1) the motive, description and outcome of the breach of law; 2) whether the violation was intentional or not; 3) family relations and their resident status; 4) whether they have attained sustainable livelihoods in Korea; 5) the impact on border control and immigration order; and 6) public consensus.
The victims were born without legal immigrant status and have different personal backgrounds and circumstances, but they had not reached an age to understand the meaning and consequences of their undocumented status and have formed the foundation of their lives in Korea by receiving elementary, middle and high school education, building their identity based on the Korean language, customs, culture and living environment and establishing peer relationships.
Immigration authorities control entry and exit of citizens and foreigners and residence of foreigners to promote the national interests and safety. In principle, it falls within the discretion of the Ministry of Justice to deport foreigners it deems unqualified for legal status.
However, in rendering such decisions, the Ministry should balance public and private interests such as the victims' dignity and right to pursue happiness established in the Constitution and victims' rights, social foundation and right to family reunification protected by international conventions while simultaneously taking into account human rights protections and principle of proportionality.
The Second Committee on Human Rights Violations of the NHRCK acknowledges the authority of the Ministry of Justice to issue deportation orders for the victims, but observes that personal losses suffered by the victims who have built the foundation of their lives in the Korean society only will clearly outweigh public interests pursued by the deportation orders. Therefore, the Committee concludes that the forcible deportation of the victims in the absence of regular screening system that grants legal status to undocumented children constitutes a violation of the dignity and the right to pursue happiness of the victims protected under Article 10 of the Constitution.
