NHRC Issues Recommendation to Minister of Justice to Lift 5-Year Re-entry Prohibition Separating Married Couple
The National Human Rights Commission (NHRC) issued a recommendation to the Minister of Justice to lift a prohibition of re-entry against Ms. Oh, 31, an ethnic-Korean woman of Chinese nationality who had, in the past, overstayed her visa in Korea. The recommendation originated from an April 2003 complaint against the chief of the Seoul Immigration Office (SIO) filed by Ms. Oh’s husband, Mr. Kim, 31. In the complaint, petitioner Kim argued that the MOJ prohibition unjustly separated him from his wife, who had gone to China to legally register their marriage after their having lived together as man and wife for some time.
The NHRC investigation into the complaint found that Ms. Oh—who had come to Korea in January 2001 on a short-term C-2 (015) visa and had a real marriage with Mr. Kim—had voluntarily reported herself to the Seoul Immigration Office in August 2001 as having overstayed her visa and paid a fine of 1.5 million won. In September 2001, Oh went back to China in order to register her marriage to Kim, but was blocked from reuniting with her husband because the SIO had imposed a 5-year prohibition on her re-entry to Korea.
The SIO responded that the Justice Ministry “Guidelines on Voluntarily-Reporting Overstayers” stipulates a 5-year prohibition on re-entry into Korea for overstayers. However, the guidelines also provides that, “those under the age of 17 or over 60, and visa-overstayers married to a Korean national shall be granted reprieve from regulations restricting re-entry.”
The NHRC also carried out an on-site investigation of Oh and Kim’s domicile and interviews with neighbors to consider the possibility that Oh may have married Kim on paper just to extend her visa status in Korea. After examining the evidence, the Commission acknowledged the marriage to be real; even before Oh and Kim’s marriage on paper, they had been living together as a married couple and the evidence suggests that they will continue to live together as a married couple.
Further, after taking into consideration the fact that Oh voluntarily reported herself to the SIO in order to smooth the way toward registering her marriage and the fact that she had gone to China after having paid the 1.5 million won penalty in full, the Commission found the SIO’s 5-year prohibition on re-entry to run contrary to the spirit of humanitarianism embedded in the Korean Constitution and international human rights conventions.
Regarding humanitarian principles against state-imposed family separation, article 36: clause 1 of the Korean Constitution reads: “Marriage and family life are entered into and sustained on the basis of individual dignity and equality of the sexes, and the State must do everything in its power to achieve that goal.” Additionally, the International Covenant on Civil and Political Rights holds, “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State (ICCPR, article 23:1)” while the International Covenant on Economic, Social and Cultural Rights clearly points to the state’s obligation to protect the family: “The widest possible protection and assistance should be accorded to the family… particularly for its establishment and while it is responsible for the care and education of dependent children (ICESCR, article 10:1).”
