Refusal to issue employment permits to foreign workers without reasons attributable to the workers is a violation of the right to the pursuit of happiness and freedom of choice of work
Recommendation to the director of OO regional employment and labor agency to prepare remedies by extending the deadline for job seeker registration
□ On June 1, 2023, National Human Rights Commission of Korea (chairperson Song Doo-hwan, hereinafter referred to as the “Commission”) recommended the director of OO regional employment and labor agency (hereinafter referred to as the “Respondent”) to prepare appropriate and proactive remedies by extending the deadline for job seeker registration. This is to enable victims who are staying as unregistered aliens due to the expiration of job seeker registration period without reasons attributable to themselves can provide labor as foreign workers under employment permits and legal status of stay.
□ The petitioner is a representative of a civic organization which carries out activities to protect the human rights of migrant workers. The victim is a foreign worker who entered Korea on Non-professional Employment (E-9) visa and made employment agreement with company A through an interview on December 16, 2022. The company was recommended by the OO regional employment and labor agency (hereinafter referred to as the “Respondent Agency.” The deadline for the victim’s job seeker registration was December 19 and company A asked OO immigration office about the available date of visit to apply for change of place of business of the victim, and received a reply that it is available on December 29. Company A explained the situation to the Respondent Agency and asked if it was okay to visit and register the victim as job seeker on December 29 and received a reply that it was possible. However, on December 20, the Respondent Agency notified the victim that the employment permit cannot be granted since the job seeker registration period has expired. As a result, the victim was at risk of being deported and filed a complaint with the Commission.
□ The Respondent replied that company A only faxed a statement that it has intention to hire the victim but did not send documents for application that are required for employment permit, such as employment contract signed with the victim. The Respondent added that it informed company A that the company should obtain employment permit within the victim’s job seeker registration period1) and obtain permit to change the place of business by the OO immigration office.
□ Since company A submitted a document to the Respondent Agency stating its intention to hire the victim and requested the victim to visit the immigration office to file an application for employment registration and stay permit, the Committee on Human Rights Violation Committee 2 determined that it is reasonable to assume that a labor contract has already been established between the parties, and that it is difficult to determine that the job seeker registration period has expired due to the victim’s intention or negligence.
Moreover, the Respondent Agency has a legal obligation to prevent and protect foreigners who have lawfully entered the Republic of Korea with employment permit from becoming unregistered aliens and receiving poor treatment. Therefore, the refusal of the Respondent Agency to issue employment permit to the victim who did not intentionally fail to register as job seeker or make gross negligence in registering withing the period was an act that unduly restricted the victim’s right to pursue happiness and freedom to choose a job.
□ The Commission recommended that the Respondent provide appropriate remedies for the victim to work as a foreign worker with legal status.
11) According to Article 25 of the current Act on the Employment of Foreign Workers, foreign worker’s change of place of business shall not exceed three times and a foreign worker needs to obtain permission for transfer to another workplace within three months from the date of the application for transfer to another place of business, and a foreign worker who fails to file an application for transfer to another business or place of business within one month after the expiration of the labor contract with the employer shall leave the Republic of Korea.
