[In-Depth Look] The Weight of Saying "Followed Relevant Regulations"

There are families who fled to Korea after being subjected to illegal detention, torture, and sexual assault. Immigration authorities deemed their cases as “clearly without grounds for refugee recognition application” and decided that there was no need for a formal refugee review. What is the basis for this? The Ministry of Justice responded that the guidelines serving as the basis are entirely confidential in both title and content, so they cannot disclose them. The Ministry also said it cannot release the review reports. The refugee family, who had to endure over a year of sleeping rough at Incheon Airport with children under the age of 10, still does not know why they were rejected without any review. How many people could accept a decision that changes their fate after hearing that it was made according to a regulation that cannot be disclosed to anyone, not even its name?

In April 2019, officials at a detention center handcuffed a foreign detainee’s ankles and wrists, connected the two handcuffs to bind the limbs behind the back, and left him in a punishment cell for about 2 hours and 40 minutes. The National Human Rights Commission judged that the use of restraints not specified in the relevant regulations violated the victim’s human rights and recommended job training to the Minister of Justice and the detention center director. However, recently, an unexpected story was heard from the detention center.

Now, instead of ankle handcuffs, they tie ‘poseung’ (a type of rope restraint) on the ankles and connect the poseung to wrist handcuffs to bind the limbs. If this is true, the only change is the material of the restraint used on the ankles. The detention center official refused to explain anything other than saying, “We used restraints according to the relevant regulations.” It is concerning that, taking note of the National Human Rights Commission’s point that “ankle handcuffs are not in the regulations,” they may have thought that using the ‘poseung’ specified in the regulations would be acceptable regardless of how it is used. Surely, the Ministry of Justice, which oversees law enforcement, would not continue acts already judged as human rights violations by performing such wordplay and acrobatics in logic.

Korea is a signatory to the Refugee Convention and was the first country in Asia to enact a Refugee Act. Legally, anyone who arrives in the Republic of Korea can apply for refugee recognition without any qualification restrictions. Even if they lack passports or identification, refugee reviews cannot be refused on that basis. Yet, immigration authorities suddenly began to argue a new claim based on a phrase in the Refugee Act stating “when receiving entry inspection to apply for refugee recognition,” asserting that “one must be eligible for entry inspection to apply for refugee status.” The refugee applicant targeted by this new claim did not have a plane ticket to Korea and spent 1 year and 2 months at the airport without even being able to submit a refugee application. Both the first and second instance courts ruled in favor of the refugee applicant. While the Ministry of Justice creatively disputed the seemingly clear meaning of the provision’s wording, citizens continued fundraising to help refugees urgently needing food and medicine. Who was breaking the law?

The work of public interest lawyers often leads to efforts to improve unreasonable systems and legal provisions. However, in many cases, they hope that state agencies enforcing the law will at least follow existing laws in a reasonable and commonsense manner, without evading the law through acrobatics of logic. Only when regulations are made publicly in a democratic manner, interpreted reasonably in line with their purpose, and applied accurately will the phrase “in accordance with the relevant regulations” have real meaning.

Lee Han-jae, Lawyer, Duroo Corporation