NHRCK Recommends Improvements in Deportation Procedures and Information Sharing for Foreigners
The National Human Rights Commission of Korea recommended to the Minister of Justice that Formulate an amendment similar to the Administrative Procedure Act for the regulations on the deportation of aliens.
On 30 January 2024, the National Human Rights Commission of Korea (Chairperson Song Doohwan, hereinafter referred to as "NHRCK") submitted recommendations to the Minister of Justice: 'Regulations such as the Guidelines on Entry Control Task should be supplemented to ensure that procedures are made comparable to the Administrative Procedure Act. The recommendation includes the issuance of written notices or guidelines to foreigners who are served with deportation orders, informing them that if their deportation is carried out at the expense of the Korean government, they may face a longer period of prohibition from entering the Republic of Korea.
The complainant, a representative of a refugee support organisation, filed a complaint on behalf of the victim, a foreigner who had been deported. Normally, deportations are carried out at the expense of the deportees themselves, but in this case the victim's deportation was financed by the government. As a result, the length of the deportation order was doubled from 5 to 10 years. Despite this significant change, the victim was not informed of the extension of the deportation order at the time of deportation. The victim approached the NHRCK to seek redress for the harm caused by not being able to reunite with family members living in Korea. The victim is willing to reimburse the Korean government for the airfare incurred during the deportation process. However, the victim claims that the authorities reject visa applications without any consideration and do not provide guidance on how to proceed with the repayment process, including other necessary information.
The NHRCK Committee on Human Rights Violations 2 found that the extension of the entry ban from 5 to 10 years did not constitute a human rights violation as it was in accordance with existing laws and regulations. With regard to the issue of the procedures for the reimbursement of deportation costs and the lack of information about these procedures, the allegations of the two parties were contradictory and the complainant's allegations could not be independently substantiated. Therefore, the Commission decided to dismiss the complaint based on the provisions of Article 39 (1) 1. and 2. of the National Human Rights Commission of Korea Act.
However, during the course of the investigation it emerged that the Respondent stated that the Victim had been informed of the extended entry control period orally, rather than in writing. Given that the Victim is a foreigner, it is possible that she did not fully understand the implications of this extension. The government assumed the cost of deportation because the victim did not, resulting in the doubling of the entry ban from 5 to 10 years. This act of extension of the entry ban by the administrative authorities can be considered as a form of unfavourable treatment against a person who fails to fulfil a specific obligation, in accordance with the applicable guidelines. In view of these circumstances, the Committee decided to review the current policy with a view to better protecting the rights of all concerned, in accordance with Articles 19 (1) and 25 of the National Human Rights Commission Act.
The victim's initial unregistered stay was an offence under the Immigration Act which resulted in a 5 years entry ban. In addition, the Government's payment of deportation costs resulted in a further 5 years entry ban. It appears that the victim was not fully informed or did not clearly understand the details of her adverse treatment order.
The Supreme Court has ruled that the appeal procedure does not apply to decisions on the extension of entry control periods, nor to the issuance of notices or guidelines on such extensions. In addition, the Administrative Procedure Act and its Enforcement Decree stipulate that immigration-related matters concerning foreigners are exempt from the provisions of the Act. Nevertheless, it is challenging to categorically state that providing written notice or guidance to foreigners being deported at the expense of the government about their risk of adverse action is "impossible or deemed unnecessary due to the nature of the relevant administrative actions". On the contrary, it is considered best practice to clearly communicate to those to be removed the potential adverse treatment they may face, together with the legal grounds and rationale for it. This approach not only facilitates an appropriate response from the deportee, but also equips them with prior knowledge of possible future consequences.
While immigration authorities currently provide information to foreign nationals orally during deportation proceedings, there are concerns that those individuals may not fully understand the details due to language or cultural barriers. In addition, the transient nature of verbal communication leads to limited understanding and further complaints about the adequacy of the information provided. The Committee believes that a more proactive and definitive approach is needed in the future, by ensuring that written information is provided to deportees.
The NHRCK therefore recommends that the Minister of Justice make the following addition to strengthen the current regulations and guidelines: When informing foreigners that their period of ban from entering the Republic of Korea will be extended upon deportation at the expense of the government, such information should be provided through written notice or guidelines, etc., so that this process is comparable to the procedural standards set forth in the Administrative Procedure Act.
