[기고] Right to Stay for Undocumented Migrant Children in Korea – the First Important Step > 공익법률지원활동

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이주외국인 | [기고] Right to Stay for Undocumented Migrant Children in Korea – the First Important Step

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작성자 재단법인 동천1 작성일18-10-04 10:33 조회5,091회

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Right to Stay for Undocumented Migrant Children in Korea – 

the First Important Step

이탁건 변호사
Takgon Lee
At the age of 18, F (who asked to remain anonymous) had just graduated from high school in a small city in South Korea and started working at a small factory. He had worked hard for this. He earned three certificates for welding when he was in high school – not an easy feat. He had wanted to work as soon as he graduated from high school. His mother and his three little brothers and sisters needed the money.

The only problem was that he had no residence status. He was born in Korea when his Nigerian father was working there under a working visa, and his mother under a dependent visa. However, with his father’s deportation some years later, F lost his documented status at the age of 9, along with rest of his family. Ever since, he had been undocumented. After F worked for a few months at his first job, he was caught in a routine workplace raid by immigration authorities and given an immediate detention and deportation order.

Undocumented children can, in principle, get a school education like any other child in South Korea, and are mostly (but not by law) protected from deportation until completion of high school education. This is the result of another case. In 2012, a Mongolian high school student who had lived for 10 years in Korea was deported after he had testified and acted as an interpreter at the police station for his friends who were caught in a group fight with other students. When the police found that the Mongolian teenager was undocumented, they promptly called immigration authorities to detain and deport him. This case resulted in widespread criticism from NGOs, leading the Ministry of Justice to amend regulations to defer deporting undocumented migrant children, as well as their parents, while they are attending high school – previous regulations, implemented a few years before, provided protection for children attending lower and middle school and their parents, but not those attending high school.

This policy had been touted by the Korean government internationally as one of the key policies reflecting its priorities on protection of migrant children.[1] However, regardless of the current policy, deportations of undocumented children still take place. There is no protection for younger than school-age children, or for out-of-school teenagers.

Also, as in the case of F, the inevitable outcome for undocumented children, no matter how long they have lived in Korea, is deportation. No regularization paths exist for them. Undocumented migrants, if caught, are almost universally given deportation and detention orders, and are detained immediately. Deportation orders are usually coupled with an entry ban of 5 years or longer. There is no guarantee that someone who has been deported can obtain a visa to re-enter South Korea afterwards.

The plaintiff’s argument: His right to stay

F filed an administrative lawsuit against the Ministry of Justice seeking cancellation of the deportation order. He argued that he was completely integrated into Korean society. He was born and had lived in Korea for his whole life. He had completed 12 years of education provided by the Korean government. His friends were all Korean. He had lost contact with his father, and there were no relatives to take care of him back in Nigeria. He had limited command of English, the official language of Nigeria, and had no knowledge of regional dialects. He was unfamiliar with Nigerian culture and society. Because his mother and his siblings could stay in Korea until each child’s high school graduation, F’s deportation would mean that he would not see his family for five years or more.

In arguing for his right to stay, F cited decisions and General Comments by the United Nations Human Rights Committee applying Article 23 (right to family life) and Article 12, paragraph 4 (right to enter one’s territory) to protect migrants from deportation[2]. He also referred extensively to caselaw of the European Court of Human Rights on a migrant’s right to privacy and family life in connection with his or her right to stay[3], as well as decisions from the Inter-American Court of Human Rights.[4]

The defendant’s response

The Ministry of Justice answered that, rather than counting in this favour, they considered the long period of F’s irregular residence, as adding to his violation of immigration laws. The Ministry argued that the temporary suspension of deportation until the completion of high school education does not create a right to stay, and that immigration law provides no exceptions. The defendant also argued, correctly, that the previous caselaw had found for broad discretion by the Ministry of Justice regarding immigration decisions, including deportation orders; that is, the court tended to defer to the government’s immigration decisions, citing the state’s sovereign right to determine who to admit and deport.

The court’s decision: F cannot be deported

The Cheongju District Court rendered its decision on 17 May 2018. The Court first accepted that the Ministry of Justice has wide discretion in issuing deportation orders but found that this discretion must be exercised in conformity with certain standards. The court reiterated previous court decisions that found that the main purpose of a deportation order is to “achieve the public interest of protecting Korean nationals from foreigners with tendencies contrary to social order” and went on to limit the scope of the government’s discretion thereto.

The Court agreed with the plaintiff’s arguments regarding his integration into Korean society and found that F could not be held responsible for his transition from regular to undocumented status at age 9. The Court therefore concluded that F cannot not be viewed as a ‘foreigner with tendencies contrary to social order’.

The Court then ruled that “expelling a person such as the plaintiff, who was born in Korea and has since lived here, considering Korea as his only home, goes against a civilized nation’s constitutional principles to protect people’s dignity and to ensure their right to life”.

The Court also found that the “Republic of Korea has the duty to protect the basic human rights of the plaintiff, who has formed his social basis in Korea, so that he can stay here to live a life worthy of human beings”.

Moreover, the Court touched upon the Korean government’s duty to implement some sort of regularization scheme for people such as the plaintiff, because forcibly expelling such migrants who have finished lower, middle and high school education in Korea would mean “economic and manpower loss for Korea”.

Impact of the decision: A first step in the right direction

To my knowledge, this decision is one of the very few court decisions limiting the government’s scope of discretion in issuing deportation orders and is the first decision to cancel a deportation order of a migrant child or young person based on his or her social ties with Korean society.

The decision has come at an opportune time. A study by the National Human Rights Commission of Korea in 2011 estimated the number of undocumented migrant children under 18 at 20,000 (out of approx. 10 million Korean children), but no specific estimates exist for those who have resided in Korea for an extended period of time. To date, there has been no sincere acknowledgement or research by the Korean government of the growing presence of undocumented migrant children in Korea and no political debate on how to address the issue.

In an interesting attempt to leverage its own lack of knowledge, the Korean government argued during F’s lawsuit that cancelling F’s deportation order would have immense negative consequences for the Korean economy because the number of these young people ‘cannot even be measured’ (and thus may be very large).

That is not to say that undocumented children have been invisible. Korean NGOs working for migrants’ rights are aware of numerous cases where migrant children go through identity crisis, first realizing that they are considered ‘not Korean’, and then understanding the meaning of being without secure residence status. The impact that the lack of regularization policies has on these children and their development – anxiety and outrage at being unable to plan for any future in the country they consider home – has been observed in many cases. With the surge in labor immigration to Korea during the past decade (majority of which are from Asian countries), the population of undocumented children will surely grow.

The Court decision was remarkable because the Court for the first time clearly and directly addressed the state’s constitutional duty to ‘protect the dignity and human rights’ of undocumented migrant children and recognized their right to stay, based on their formation of social ties with the Korean society and a sense of Korean identity.

The Ministry of Justice decided to forego appealing the court decision, affirming it. F now has a residence status and plans to enter college. He is optimistic about the future of his family. It remains to be seen whether the Korean government will eventually implement a sound and concrete regularization policy in order to fulfill its ‘constitutional duty’ to protect the human rights of F’s brothers and sisters, and other children like them.

Most likely, it will require years of advocacy efforts from migrant rights organizations, but we’ve taken the first step.

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[1] “Protecting migrants in vulnerable situations and promoting their human rights have always been a key priority for my government’s migration policies […] assisting primary and secondary education to school-aged migrants regardless of their parents’ immigration status.”, Statement by the Republic of Korea, Economic and Social Commission for Asia and the Pacific, 6 November 2017, Bangkok.

[2] CCPR Communication No.1959/2010 (Warsame).

[3] A.A. v. the United Kingdom, Üner v. the Netherlands, Butt v. Norway, etc.

[4] Report No. 81/10, Case 12.562, Wayne Smith, Hugo Armendariz, et al. Argentina, IACHR.

 

This was first published on PICUM’s blog