1. Pill Kyu Hwang Korean Public Interest Lawyers Group GONGGAM

2. Countries/Territories in East Asia and the Pacific

3. “Eastern Asia” (UN DESA Statistics Division) China, Hong Kong, Japan, Macao, Mongolia, North Korea, South Korea UNHCR Data & UN Population Division Countries/Territories in East Asia ChinaHong Kong JapanMacaoMongoliaNorth Korea South Korea Ratification of Refugee Convention X-X---X No. of Refugees in 2007 301,083 (300,897 Vietnamese) 101 (20 Somalis) 1,794 (975 Vietnamese) -5 (5 Chinese) -93 (30 Burmese) Population in 2005 (thousands) 1,312,9797,507127,8974732,58123,61647,870

4. Legalistic Approach (v. Social and/or Political Approach) Individual Refugees (v. Refugees in Mass-Influx) National Solution (v. Regional Solution) Minimal No. of Refugees in Relation to Size of Economy Common Characteristics of Refugee Situation in East Asia (Hong Kong, Japan & South Korea)

5. Asylum seekers - No work permit & no/little provision of social assistance - Delays in RSD - No institutionalized legal aid - Appeals dealt with by the same entity in charge of initial decisions - Narrow interpretation of “well-founded fear of persecution” & “an unusually high standard of proof” - Indefinite detention (Recognized) Refugees - No/little program for social integration or social and legal protection Common Challenges for Refugee Protection in East Asia

6. Recent Development of Refugee Protection in South Korea

7. The United Nation Korean Reconstruction Agency (UNKRA: 1950-1960) - Established in 1950 in order to undertake relief and rehabilitation programs in Korea - Ceased operating in 1959, & liquidation completed in 1960. Political Asylum Seekers (1960s ~ 1980s) - Pilots from China (PRC) sent to Taiwan in 1961, 1982, 1983, 1985 & 1986 - Asylum seekers in Panmunjom sent to the U.S. in 1981, 1984 & 1989 (with the UNHCR intervention) Vietnamese Refugees (1975 ~ 1993) - 3,000 Vietnamese refugees received from 1975 to 1989 - By 1993, 2,400 resettled in the U.S., New Zealand, Canada, France, the Netherlands, etc.; 600 settled in South Korea; & the relief center closed Refugee Issues in South Korea Before the Ratification of the Refugee Convention

8. The motion regarding the ratification of the Refugee Protocol in 1985 - Submitted by the Government in 1985 - Discussed in the Committee on Foreign Affairs of the National Assembly in 1986 - Abandoned with the term expiration of the MPs in 1988 The motion regarding the ratification of the Refugee Convention & Protocol in 1992 - Submitted by the Government on 2 July 1992 - Adopted by the Committee on Foreign Affairs and Unification of the National Assembly on 2 November 1992 - Adopted by the Plenary Session of the National Assembly on 11 November 1992 (with the reservation on Article 7) - The Immigration Control Act revised on 10 December 1993 Towards the Ratification of the Refugee Convention

9. Article 1A(2), as amended by the 1967 Protocol The term ‘refugee’ shall apply to any person who, - owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country: or who, not having a nationality and being outside the country of his former habitual residence… is unable or owing to such fear, is unwilling to return to it.

10. General Procedure for Refugee Recognition: 1 st Decision: Seoul Immigration Office ( Appeal : Minister of Justice) Seoul Administrative Court Seoul High Court Supreme Court ) Ministry of Justice Statistics Overview of Refugee Situation in South Korea ‘94‘95‘96‘97‘98‘99‘00‘01‘02‘03‘04‘05‘06‘07‘08‘09 신청 수 5241226443373484148410278717364324 ApplicantsRecognizedGranted Humanitarian Status RejectedWithdrawnPending 2010 년 10 월 31 일 현재 수 2,7952171311,432530385

11. UN Committee on Economic, Social & Cultural Rights (2009) “The Committee recommends … (a) providing the adequate resources …; (b) standardizing asylum procedures …” UN Human Rights Council Universal Periodic Review (2008) Korea is recommended “to implement the Refugee Convention, and ensure that refugee recognition procedures be improved in line with international refugee law.” UN Committee on the Elimination of Racial Discrimination (2007) - “The Committee notes with concern … a complex procedure and long delays in the decision-making process on asylum claims.” - “The Committee recommends … that asylum seekers and persons granted humanitarian protection be allowed to work, and that comprehensive measures be adopted in order to facilitate the integration of refugees in Korean society.” UN Recommendations on Refugee Situation in South Korea

12. Refugee Recognition under the Immigration Control Act - Step 1: Identifying a refugee under the Refugee Convention - Step 2: Exercising authorities’ discretion for granting asylum No clear standard concerning burden of proof or standard of proof Persecution: “threat to life or physical freedom” “threat to life or freedom” MOJ insisting on lack of ‘good faith’ in every refugee sur place case without exception; Courts denying the requirement of ‘good faith’ but actually applying it in their judgments Criteria for denying refugee status: genuine passports, reason for arriving Korea, economic activities in Korea, timing of submitting refugee claims, family members without persecution in home countries, etc. Recent Development in Jurisprudence

13. Asylum Seeker Registration (~2004) - UNHCR in cooperation with Minbyun–Lawyers for a Democratic Society Survey on the Human Rights Condition of Asylum Seekers & Refugees (2004) - Good Friends, Minbyun–Lawyers for a Democratic Society & The Refuge PNAN Parliamentary Human Rights Forum on the Refugee Situation & the Reform of the Refugee System (2005) National Human Rights Commission Public Hearing & Recommendation on Refugee Protection (2005 & 2006) Formation of Refugee NGO Network & Initial Research and Forum on the Enactment of a New Refugee Act (2006~2007) - The Refugee PNAN, Amnesty International, GONGGAM & some individuals Initial Work by the Civil Society for Refugee Protection (~2007)

14. Preparation of a draft bill (2008~2009) - Forum for Refugee Policy Reform (The Refuge PNAN, NANCEN, CLF, BKL Pro Bono Committee, GONGGAM, Amnesty International and some individuals with the UNHCR and the NHRI as observers) Field research on human rights situation of refugees (2008) - Forum for Refugee Policy Reform supported by the NHRI Public hearings (2008) - By Seoul Bar Association & Parliamentary Human Rights Forum Formal legislation petition of the draft bill (2009) - By Seoul Bar Association in March 2009 Introduction of the draft bill to the National Assembly on 25 May 2009 by 24 MPs Civil Society Initiative towards a New Refugee Act (2008~2010)

15. Legal assistance for asylum seeker started by Minbyun and PNAN (1999~) Legal representation actively provided by CLF & GONGGAM (2005~) - CLF: 10 lawyers 30-40 cases / GONGGAM 3 lawyers 20-30 (concluded) cases Lawyers’ Group for Legal Assistance for Refugees, Seoul Bar Association (2009~) - 50 lawyers 150 cases BKL Pro Bono Committee (2009~) - 10 lawyers 20-30 cases PNAN, NANCEN, Global Legal Clinic of the Korea University, Legal Aid Corporation, etc. providing legal assistance FUNDING: UNHCR, Korean Bar Foundation, Legal Aid by Court, etc. Legal Assistance for Asylum Seekers (1999~2010)

16. Revision of the Immigration Control Act in Dec. 2008 Time limit for filing an appeal: 7days 14 days after being rejected “Government shall make efforts to ensure that recognized refugees be guaranteed the status and treatment stipulated in the Refugee Convention.” Explicit provision of humanitarian stay permit Possible work permit for refugee claimants after 1 year from application and those granted humanitarian stay permit Possible refugee assistance facilities – Korean language education & career counseling; Social adaptation training & settlement assistance; Medical assistance; and Others needed for assistance The principle of reciprocity not applied to refugees

17. General - Explicit provision of the definition of refugees, refugee claimants & humanitarian stay permit - Principle of non-refoulement without exception Substantive Rights of Refugee Claimants - Explicit provision of residence status of refugee claimants - Guarantee of decent living for refugee claimants: living allowances/work permit Contents of the Draft Bill of Act on the Status and Treatment of Refugees, etc.

18. Procedural Rights of Refugee Claimants - Procedural Guarantees: Access to information; Refugee claim procedures at ports; Limited review period; Right to counsel; Lowered burden and standard of proof; Restricted detention; Right to oral statement in appeals; Independent appeal body; Same procedural guarantees for humanitarian stay permit Rights of Recognized Refugees - Protection of refugee rights stipulated in the Refugee Convention - Provision of family reunification & possible resettlement - Same treatment as refugees for those granted humanitarian stay permit except for immigration control - Contents of the Draft Bill of Act on the Status and Treatment of Refugees, etc.

19. Recent Development after the Introduction of the Refugee Bill Legislation & Judiciary Committee on 11 Nov. 2009 - Need for 1) a through review regarding the possibility of mass influx of refugees & economic migrants and 2) a public hearing expressed by the expert 1 st Sub-Committee on Bill Examination of the Legislation & Judiciary Committee on 5 April 2010 - Concerns raised regarding 1) mass influx of refugees & economic migrants and 2) increased legal & economic burden of the Government - Consensus reached on the need for a new refugee act & a public hearing Legislation & Judiciary Committee Public Hearing to be held on 24 Nov. 2010

20. Challenges Ahead & Need for a More Systemized Approach by Civil Society Making the new Refugee Act more than a mere decorative or declaratory legislation Overcoming the fear of the possibility of mass influx of refugees & economic migrants & increased legal & economic burden of the Government Mobilizing a more systemized & focused approach towards the enactment of the new refugee act starting with the preparation of the National Assembly public hearing