Ⅰ. Purpose and Methodology of Research
- Since 2010, the number of refugee applicants in the Republic of Korea has been increasing per annum. Since the enactment of the Refugee Act on 1 July 2013, refugee applicants have soared annually by 1,574 in 2013, 2,896 in 2014, 5,711 in 2015, and 7,542 in 2016.
- The Republic of Korea implemented the Refugee Act in full force in 2013 on the basis of the The Convention relating to the Status of Refugees(also known as the 1951 Refugee Convention) and The Protocol Relating to the Status of Refugees (also known as the New York Protocol). Thus it became clearer that the legal basis of the refugee recognition determining as well as the treatment of the refugees as a human rights protection.
- This proactive process has strengthened the procedure of refugees, however the number of refugees and asylums has increased rapidly both globally and locally due to the unstable international surroundings and frequent entry, exit and migration. On the other hand, much criticism is being raised because of the reality of our refugee practice that the recognition of refugees is very small - about 1% of all refugee applicants.
The Purpose of This Research
- It is necessary to present a fair and reasonable criteria for determining refugee status as policy alternative based on the various practical problems that have been pointed out in the process of refugee recognition, the issues of the refugee recognition determining derived from the questionnaire and the implications derived from foreign refugee policy as a comparative law.
Refugee Research Methodology as Criminal Policy
- Refugee policy needs to be analyzed in terms of criminal policy and presented alternatives in that the refugee policy is closely related to national security and social security, and responds sensitively to the rights and freedoms of human beings especially through procedural guarantees
- The problems is that preliminary studies on the refugee determining system, in the current situation of the increasing number of refugees, are mainly focused on the legal review of the requirements for refugee recognition and the analysis of the systems related to the refugee human rights issue.
Vice versa, an empirical survey on the operation of the refugee review system is very limited. Therefor, this research would like to consider following this.
- First, a total of 175 domestic and internally displaced refugee applicants will be surveyed and in-depth interviews will be conducted with three refugees who have experienced refugee refusal. Through the questionnaires and in-depth interviews on domestic refugees, this research analyze the actual status of the refugee review system, focusing on whether the applicant can properly call for recognition of refugee status.
- Second, because the refugee recognition determining is conducted within the confrontation between the applicants and the judges, a balanced perspective is required in order to find out the problems of the refugee determining process and the remedies therefor. For this reason, this research conduct in-depth interviews with six refugee examiners to identify the problems that need to be improved during the refugee screening process and to collect basic data on how to find them.
Ⅱ. Overview of Current Refugee Screening Procedures
Review of Relevant Domestic Rules and International Norms on Asylum
- There are international conventions such as the 1951 Refugee Convention, the 1967 New York Protocol, and Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees and laws such as the Refugee Act, the Immigration Control Act, the Basic Act on the Treatment of Foreigners in Korea, and the Administrative Litigation Act.
- This research will review the contents and interrelationships of domestic and international norms related to the refugee recognition determining, and explain the procedures for the recognition of refugee determining based on this.
Overview of Refugee Recognition Process
- Refugee applications may be lodged in the country of residence or at the port of entry and exit. The refugee recognition determining is carried out through the process of examination by the refugee examination officer (first step), the referee examination by the refugee committee (second step), and the litigation process through the litigation of refugee refusal decision. In order to dramatically reveal the characteristics and issues of these steps, the narration method was introduced to every step on which the refugee applicants were recognized as refugees.
- The issues raised by these overview and narration is such as these 1) prolonged refugee review period and notification period 2) procedural problems of refugee recognition - inexperienced interpreters, insufficient training of examiners, lack of COI(country of origin information), formal appeals 3) issues of treatment during refugee recognition determining period - mandatory eviction order due to unregistered stay and detention according to protection orders.
- This research examined the issue of the refugee recognition determining from an internal point of view (analysis through clinical problem and empirical investigation) and from an external point of view (comparative law).
Ⅲ. Practical Issues Raised in the Refugee Review Process
Differences from Other Refugee Research
- In previous studies, most of the problems in the refugee review process were discussed only in conflicting relationships with administrative authorities operating the system and with refugee applicants who are beneficiaries of the service thus treated as conflicts between immigration practice and refugee protection.
- However, in this research tries to capture that it is the problem of the whole people, not only the related units. Furthermore, this research would like to point out that the emotions to embrace refugees as a member of the Korean society and the emotions to reject refugees as an object of exclusion are important elements of the evaluation of national emotions on the exclusion and inclusion of refugees.
Step-by-Step Review of Refugee Recognition
- First, this research emphasizes the importance of the first stage of refugee review in the overall refugee recognition process, and makes sure that the factors of promptness, fairness, and accuracy required to identify refugees and grant status are passed on to the current refugee recognition process review.
- For example, 1) the prolonged examination period distorts the refugee system as well as the protection of individual refugees, thereby undermining fairness and accuracy as well as promptness, 2) the refugee examination criteria are not meeting the refugee convention and international interpretation standards. 3) Refugee examiners are structurally affiliated to the immigration control system, thus lack professional training opportunities. Also they do not have enough incentives for refugee recognition 4) procedural problems that in the process of judging, processes are damaged and refugee applicants are not able to expect proper screening, 5) problems of pre-refuge screening at the port of entry / departure, which is the point where immigration control and refugee protection are most intensively conflicting.
- Regarding the deliberation of the second step of the appeal, the procedural significance of the second refugee determining, the legal nature and status of the appeal under the Refugee Act, and the composition, role and function limitations of the refugee committee are analyzed. Indeed, the debate on reorganization of the refugee committee or the establishment of refugee referees is being done vigorously.
- The refugee recognition determining system is not solely entrusted to the administrative office such as Ministry of Justice, but it plays a certain role by the judiciary in the process of contesting the illegal lawsuit. In the framework of the refugee trial, this research analyzed what constitutes a practical limitation to ensure that refugees are not guaranteed to be prompt, fair, and accurate.
- Meanwhile, the refugee applicant's poor treatment and indirect forced repatriation, which are revealed in all processes of the refugee recognition determining, are also raised. In addition, the need for an independent refugee review organization under the value of expeditiousness, fairness, and accuracy and the status of the establishment of the COI (Country of Origin Information) database are introduced.
- Finally, it can be said that the position of so-called 'abusive refugee application' is not really important, but it is a problem to be solved through institutional improvement of the first examination. And the gap that arises between the protection of individual refugee human rights is also considered sufficiently.
Ⅳ. Comparative Legal Practice on Foreign Refugee Screening Procedures
Obtaining Objectivity of Analysis through Diversification of Perspectives
- The external perspective (comparative law) necessary to review the refugee recognition determining is introduced. Thus it will firstly provide an overview of the meaning, limitations and purpose of the comparative legal review and country characteristics of the overall foreign refugee screening process.
- In particular, the following issues are served; the process of tracking the organic process of the refugee recognition process itself, from the first application to the trial, and analyzing the problems and examining alternatives for the purpose of limiting status quo of other countries, and the institutional implications of the refugee recognition process in Korea.
Countries of the European Union - Germany, France, Netherlands
- First, this research compares the three countries of the EU, Germany, France and the Netherlands, which are the main refugee recognition process countries that are undergoing the so-called European refugee crisis.
- 1) Germany is one of the final destinations that individual refugees dream of starting the current European refugee exodus after the 'Aylan Kurdi' death. In this context, the review process of the Federal Refugee Agency (BAMF) in Germany is in operation and, in particular, the refugees are dispersed and examined through collaboration with local governments. 2) The review process of the Office of Refugee and Stateless Persons (OFPRA) in France has a long history of refugee procedure operations, but has been criticized for its real-life operation due to its bureaucratic system operation.
3) The examination process of the Dutch Immigration and Naturalization Authority (IND), which welcomes immigrants and has a deep rooted value in the state-led free litigation structure, is also of use for us.
- In the EU countries, the above-mentioned refugee recognition determining system is applied to all refugee applicants even though the difference in economic scale is not comparable to that of South Korea in the number of refugee applicants. It is seen as part of the way to maintain the normative view without putting an ex ante brigade called 'abusive refugee application'.
America - United States, Canada
- In the United States and Canada, the history of the establishment itself has the background of an immigration country, so many people dream of immigration, and economic migrants for employment are also many final settlement target countries. From these countries, the criterion of the refugee recognition system of Korea can be established through insights on the refugee system operation experience, which is more experienced than the viewpoint of the refugees themselves.
- In the United States, it is known to be the world's number one recipient of resettled refugees, primarily in terms of size, system, and system. It is difficult to make a direct comparison in that the United States is operated by the Immigration Judge, who has a quasi-judicial form with the USCIS, which is the actual immigration authority and does not exist in Korea. However, in addition to the affirmative recognition procedure such as the refugee recognition system in Korea, foreigners who are classified as immigration officers through a defensive procedure in which foreigners who have been ordered to leave the country and who are in danger of repatriation are asked again for risk assessment at the time of repatriation, everyone is given the opportunity to be judged about the risks de facto.
- Canada's refugee recognition process, known as a refugee-friendly policy, has introduced some sort of pre-screening due to the increase in the number of refugee applicants, but the Canadian Immigrant Refugee Committee (IRB) The structural peculiarity of being independent of the department of the government unit in charge, and having been practicing the antecedent structure for a long time in the determining process, can be a criterion for criticism.
Asia - Japan
- Japan, like Korea, is not only an immigrant country, but also the administrative authorities' view on refugee systems is also focused on 'suppressing abusive refugee applications.'
- Nevertheless, the refugee recognition procedure carried out by the Ministry of Justice in Japan is now paying attention to securing the legal basis for procedural rights.
- In particular, as Japan's introduction of resettlement refugee systems in terms of the development of the system directly affected the introduction of the resettlement system in South Korea, the unique relationship between the two countries could provide mutual influence for institutional development It is noted as a request for continuous exchange in the future.
Implications for our Law and Legal Practice
- Although the context of regional agreements such as the Dublin Convention and the number of refugee applicants arriving is different from that of Korea, the EU countries such as Germany, France, and Dutch provided useful implications for organic cooperation with the municipalities that could be used to accommodate mass refugees, early access systems, and the country's overall litigation structure.
- There are a lot of things to learn from America's defensive refugee applications, which divide the types of refugee recognition applications but provide a comprehensive framework for repatriation procedures for foreigners, under which specific refugee procedures are designed and opportunities for risk assessment before repatriation. The structural independence of the Immigrant Refugee Commission (IRB) in relation to the refugee system initiative in Canada gives many implications to us.
- In Japan, it is clear that the institutional problems of the refugee system that Korea is experiencing at present are not just that the operation of the refugee system is merely an improvement of the legal system. In order to improve the refugee recognition process in East Asia in future, comparative research between Korea and Japan in terms of refugee protection and the necessity of joint solution can be considered as an external criterion of criticism.
Ⅴ. Survey on the Operation of Refugee Determining System
Survey Subject and it’s Direction
- This research carried out in - depth interviews with three refugees who had refugee applicants and 175 refugees who had experience of cancellation. At the same time, in-depth interviews with six refugee examiners are conducted.
- The questionnaire process is divided into stages, from the entry of refugee applicants to the receipt of applications for refugee recognition, the interview process for refugee interviews, the evaluation of refugee applicants for refugee examiners, and the issue of so-called 'abusive' refugee applicants.
Process Analysis from Entry of Refugee Applicant to Receipt of Refugee Recognition Application
- Although the process of filing document and accepting a refugee recognition application is an important step in providing the primary data for refugee review preparation as the first step in refugee review, refugee applicant are experiencing discomfort in the language barriers and the attitudes of the public officials.
- It was confirmed that it is necessary to prepare remedial measures such as easy explanation of difficult terms for filing refugee recognition application or providing interpreter service at the reception stage.
Analysis of Refugee Interview Process
- As a result of major researches on the refugee interview and the decision process of the refugee, the refugee recognition process has been in compliance with the procedure set out by the current Refugee Act, and it appears that the interpreter service required for refugee applicants is actively provided. However, after the refugee recognition determining is concluded, it seems that refugee applicants have difficulty in understanding the reasons for refusal in the notification stage of the refusal decision.
- Thus, it will be necessary to give more concrete reasons for the refusal to the refugee refusal decision.
Assessment of Refugee Applicants' Evaluation of Refugee Examiner
- As confirmed by refugee applicants' assessment of refugee examiners, refugee recognition practitioners generally feel that the refugee examiner has a friendly attitude but does not know the applicant's country of origin properly. Therefore, it is concluded that it is urgent to establish a support system that systematically collects and provides COI.
- Furthermore, the recruitment system is an obstacle to securing the expertise of the refugee examiner. So there is a need for a policy to improve the long-term working and professionalism of the refugee examiner.
Analysis of so-called 'Abusive Refugee Applicants’
- Finally, this research analyzed the 'abusive refugee applicant' problem, which seems to emerge as a social issue in recent years. In the in-depth interviews of refugee examiners, the direct method to filter the application for false refugees seems to be inappropriate in the normative and realistic situations where refugee interview can not be omitted.
- Rather, it needs to note that in the process of filing document and accepting applications, there is a good environment for illegal brokers to assist in applying for refugee recognition due to lack of assistance. Therefore, it is an one way to introduce provisions to investigate and punish brokers who mediate refugee recognition applications in illegal or illegal ways.
Ⅵ. Criminal Policy Direction and Alternatives to Improve Refugee Screening Procedures
Crossing Perspective to Position Criminal Policy Orientation
- Through both the various practical problems pointed out in the process of refugee recognition, the issue of the refugee recognition assessment derived through questionnaires as an internal perspective, and the implications derived from the comparative law as an external perspective, a fair and reasonable policy alternative on refugee recognition assessment should be presented.
- Based on this point of view, the policy orientation of fairness of judging, speed of procedure, expertise of determining to improve the refugee recognition process could be suggested.
- The policy alternatives are largely divided into a microscopic view pointing out the problems of the current process and suggesting concrete alternatives, and a macro view that examines the reflexive attitude toward the refugee concept along with the fundamental worry about the refugee recognition process itself beyond the status quo process.
Micro Policy for Improvement of Refugee Recognition Review 1 - Enhancing Fairness of Review
- In order to improve the system for the fairness of the examination, several measures are proposed to improve refugee interview survey method in the first examination including alleviation of the burden of proof in the refugee recognition determining.
- Specifically, this research suggests guidelines for refugee interview methods, mandates for recording in the process of interviewing refugee interviews, viewing of recorded files, guarantee of right of entry, introduction of interpreter training and interpreter monitoring programs, etc.
- In addition, the revision proposal for the objection has been proposed and reviewed, including the improvement plan for the refugee committee and the improvement of the court stage (strengthening the refusal of appeals, strengthening judicial job training, and providing specific legal assistance for refugee recognition).
Micro Policy for Improvement of Refugee Recognition Review 2- Enhancing Process Speed
- As a factor to be considered in the refugee recognition process, a microimprovement plan is also proposed for the 'speed of procedure'. In particular, this research presents the policy alternatives based on the results of the empirical analysis of the actual situation of the refugee recognition determining system.
- In this situation survey, it is concluded that many improvements are needed from the application stage to improve refugee recognition. It is noteworthy that the fact that has been neglected in the first round of judging, which is the most important step in the determining for refugee recognition, is 'application'.
- It is important to ensure that all claims and information are provided to refugee applicants themselves, as well as to refugee officials before screening. Thus, to modify the present structure, which contains a lot of questions related to stay, to focus on questions related to the risk of persecution, and to refine the items so that they can be checked by themselves is important.
Micro Policy for Improvement of Refugee Recognition Review 3- Enhancing the Expertise of Screening
- In this survey, all of the refugee examiners who met through interviews were highly specialized in related fields, deep understanding and passion for refugees, and sympathy for refugees. Nevertheless, through the surveys, it was confirmed that the limitations of the manpower and budget, especially arising from the organizational operation of public officials.
- The proposal for the expertise of the examination is necessary to guarantee the long-term work of the refugee examiner, or to introduce the open position and to actualize the education program.
- There is a need for measures to systematically improve an important COI. In order to do this, it will be necessary to examine the foreign country's situation reporting system preferentially.
- Furthermore, this research seeks to strengthen the detection and punishment of brokers in the refugee application process, and to find ways for refugee examiners to respond effectively under Refugee Act.
Macro Policy for Improvement of Refugee Recognition Review 1- Reorganization of Procedures and Establishment of Organization
- In addition to the micro-policy alternatives that need to be improved within the current refugee recognition process, institutional imagination should be exercised in order to strengthen the fairness, promptness, and expertise of refugee recognition. To this end, this research intend to propose as a macro policy a fundamental agenda for the system, focusing on the improvement of the procedure itself and the reconstitution of the organization.
- In other words, it examines the possibility that the refugee recognition determining can be improved drastically by suggesting the imagination of the independent and permanent organization that can cover the first and the second refugee recognition determining.
- Specifically, there are 1) ‘positive fast track’ measures as an affirmative action for the purpose the rationality and promptness of the procedure, 2) a special corporation, named ‘Foundation of Integrated Support for Refugee’(FISR) to strengthen the fairness, promptness and professionalism of the procedure.
Macro Policy for Improvement of Refugee Recognition Review 2- Expansion of Refugee Concept
- Due to globalization, local boundaries are gradually disappearing or becoming less important today. For this reason, it is necessary to think about Diaspora, which goes beyond the national level and maintains its identity in other regions.
- Considering the change of the residence pattern of our time and the ambiguity of the boundaries of nation, there is a need to find ways to coexist with the various immigrants as citizens. It should not be underestimated that the history of international refugee protection is a political process that coexists with refugees of various causes.
Macro Policy for Improvement of Refugee Recognition Review 3- Possibility of East Asia Network
- The refugee recognition determining system is an intersection of international law and domestic law, and it is necessary to have active exchanges and solidarity with foreign countries while fully recognizing the unique circumstances of each country and limitations of the study of comparative law.
- In particular, it should be considered that the direction of policy solidarity among the various units linked to the refugee recognition review system. It will be necessary to seek development through harmonization of roles between government authorities, the NGOs and activists supporting the refugees, and the academic groups that study them. Through the so-called 'East Asia Network', we can solve the refugee problems in a longer and more effective way.