hankyoreh

The Korean Women Migrants Human Rights Center

“K,” a 44-year-old Nigerian national, arrived in South Korea for a short-term stay in Feb. 2015 and applied for refugee status with [his] two children. K claimed to have been threatened due to his Christian faith and forced to convert by armed Islamic extremists in his homeland. The Ministry of Justice’s Office of Immigration in Seoul concluded after an interview with K that there was “not sufficient threat of persecution” and denied his application.

The problem had to do with K’s two children, aged three and one. Concluding they could not interview young children, the reviewer conducted only a document-based review and omitted procedures during K’s interview to act on their behalf in order confirm the children’s intentions.

A court concluded the procedure was in violation of the law. Judge Lee Dong-won of the sixth administrative division of Seoul High Court announced on Dec. 10 that he was overturning the first trial decision and ruling partially in favor of the plaintiffs in a suit to reverse the decision to assign refugee status to K and his family.

“It is unlawful to refuse to acknowledge refugee status based on documents alone without direct or indirect interviews with the children,” Lee ruled.

According to the court, the Ministry of Justice did not properly observe regulations in the Refugee Act, which states that interview procedures must be conducted in a refugee status application review and can only be omitted in cases of false or duplicate applications or sojourn extension purposes. The application on the minors’ behalf was judged not to meet conditions for omission of an interview.

The court went on to emphasize the importance of not misapplying the “principle of family unity.” The Office of the UN High Commissioner for Refugees (UNHCR) states in its “Handbook on Procedures and Criteria for Determining Refugee Status” that dependents are typically recognized as refugees when the head of household is recognized.

“This means that refugee status should be granted to underage offspring even without independent grounds when the parents are recognized,” the court said.

“It does not mean that independent interviews are unnecessary in the case of minors,” it added.

The court also stressed underage children’s right of statement, citing the UN Convention on the Rights of the Child. The convention states that children should “be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body.” The court concluded that the children’s intentions should have been confirmed through a parent even if they could not be interviewed themselves.

“It’s rare to see the Convention on the Rights of the Child being regarded as a norm in a trial,” said Kim Jong-cheol, an attorney with ample experience in refugee cases. “The court was reaffirming the child’s right to state his or her intentions and stressing controls on refugee status acknowledgement procedures.”

A number of courts have made recent rulings against unconstitutional procedures in refugee status reviews. In October, Seoul Administrative Court singled out poor interpretation services in its ruling on a case involving an Egyptian national denied refugee status due to a poorly conducted interview.

“As the number of refugee applications has increased in recent years, applicant backgrounds have also gotten more diverse,” noted attorney Kim Ho-san, who represented K and his family.

“The court is also demanding a careful procedural approach that takes this diversity into account in refugee status reviews.”

By Hyun So-eun, staff reporter

Please direct questions or comments to [english@hani.co.kr]