When a foreigner's Human Rights were Violatedwritten by atty. Lee, Na-young
When a foreigner’s human rights were violated
in the departure waiting room
Can foreigners be legally remedied if they are unfairly violated of the human rights in the departure waiting room? Can a foreigner in the departure waiting room get help from an attorney?
There is a new flow of legislation that reflects the change in the precedents of the Constitutional Court.
Constitutional Court’s Precedent Changed
The Constitutional Court changed its existing precedent in the case of unconstitutional confirmation of denying the rights to an attorney of the refugees detained in the repatriation waiting room at Incheon International Airport, and said that “detention” stipulated in the text of Article 12(4) of the Constitution includes detention in administrative procedures. Therefore, the detention of the claimant who applied for refugee recognition but received a decision not to be reviewed of a refugee recognition in the repatriation waiting room for about 5 months and blocking the entry to the transit zone falls under the “detention,” prescribed in the text of Article 12(4) of the Constitution, and the refusal of the claimant’s attorney’s request for an interview with the claimant infringed on the claimant’s right to counsel under the Article12(4) of the Constitution, which is guaranteed to the claimant. (Constitutional Court 2018. 5. 31. 2014 Heon/Ma 346). This is evaluated as the meaning of extending the warrant requirement principle of the Constitution to administrative procedures.
Revision plan of the Immigration Control Act related to the departure waiting areas
The Ministry of Justice announced on April 29, 2012 that it has decided to improve the departure waiting room for foreigners, whose entries to the country are denied, which has been operated by the Airline management council (AOC), to be set up and operated by the state through the revision of the Immigration Control Act. An official from the Ministry of Justice said, “We expect the controversy over human rights violations will be resolved to a large extent by improving the facilities in a bright and human rights-friendly way and providing normal meals to foreigners who are denied of the entry to the country,” and said that, “The Ministry of Justice will actively participate in the parliamentary discussion process in the future, and we will prepare without a hitch by consulting with relevant ministries to secure related infrastructure such as facilities and manpower.”
Lawmaker Park Ju-min’s Immigration Control Act Amendment Bill
In the regard, lawmaker Park Ju-min’s amendment to the Immigration Control Act provides a basis for the establishment and operation of the departure waiting room to protect the human rights of workers in the departure waiting room and to pay the administrative costs incurred until foreigners leave the country if the transport company is not responsible. In addition, it allows to exercise the minimum legal force when foreigners interfere with the maintenance of security and order during immigration control.
Lawmaker Park Ju-min explained the purpose of the legislation, saying, "The workers in the departure waiting room, who were in a poor situation, are having a harder time due to COVID-19," and "This law should be passed as soon as possible to ensure a safe working environment for the workers in the departure waiting room, and also to increase job security."
- Since the Korean government will be the management body of the departure waiting room, various lawsuits against the Korean government are likely to be possible to contest the illegality of these factual acts of power or dispositions, and infringement of rights.
- It is believed that landing (entry) should be permitted for the lawsuit against the act that occurred in the departure waiting area.
- A separate legal principle will be applied to the disputes over factual acts of power in the departure waiting room and refugee applications and subsequent administrative proceedings by foreign parties.
- It is expected that detailed legislation on the legal status and related legal procedures of foreigners in the departure waiting room and related legal procedures will be enacted, and legal remedies will be materialized.
Have you ever wondered how to remedy the rights of foreigners who suffered unfair human rights violations in the departure waiting area?
When the administrative body of the departure waiting room is converted to the state according to the revision of the law, it is expected that a way will be opened to dispute the human rights violations of foreigners in the departure waiting area through administrative proceedings.