hankyoreh

Incheon International Airport Terminal 2 (Lee Jeong-a/The Hankyoreh)

A South Korean court has ruled that the Ministry of Justice violated the bodily freedom of an asylum seeker who it prevented from leaving the transfer section of Incheon Airport for around 14 months on the grounds that he was a transfer passenger. The court found that leaving asylum seekers in the transfer section without any intention of reviewing a refugee application was tantamount to illegal detention.

The ruling came in an appeal of the African man’s lawsuit, in which he asked that the Incheon Airport branch of Korea’s immigration service, which the Ministry of Justice administers, release him from detention in the airport’s transfer section.

Koh Seung-il, a judge with Criminal Division 1-2 at the Incheon District Court, departed from an earlier ruling in finding that the man had been subjected to “illegal compulsory detention.”

After arriving at Incheon International Airport in Feb. 2020, the African man sought to apply for refugee status because of political persecution in his home country, which was not disclosed. But Korean immigration didn’t allow him to file an application on the grounds that he was a transfer passenger and didn’t have the right to enter the country.

After 423 days in the transfer section, the man was finally allowed to leave the airport in April 2021 after a court agreed to temporarily lift his detention.

The Incheon District Court had dismissed the lawsuit, saying there was no point in making a decision when the man had already left the airport. An earlier court had rejected the man’s argument on the grounds that there were no legal issues with the Justice Ministry’s action.

But in the latest ruling, the court made clear that leaving the man in the transfer section had been an illegal action with no legal basis.

“[The Ministry of Justice] didn’t allow this man to enter the country and didn’t initiate the procedures for applying for refugee status as defined in the Refugee Act even though he sought to do so at the departure gate of the transfer section of Incheon Airport in February 2020,” the court said.

“Afterward, he was forced to stay for a long time at the departure gate of the transfer section, a confined area with restricted access to the outside world. While he may have been a foreigner without permission to enter the country, [the Ministry’s decision] restricted his bodily freedom without any legal grounds, which amounts to illegal detention.”

The ministry had previously argued that the man should not be regarded as being in detention or custody because he was staying in the transfer section of the airport of his own free will and because he had the option of traveling to another country.

That argument convinced the court of the first instance. “The man is only staying in the transfer section and is not being detained, confined, or kept in custody there,” the court said.

But the appeal court rejected the ministry’s argument, as well as the earlier ruling.

“[The Ministry of Justice’s argument] assumes that the man will be unfairly forced to give up his intention to apply for refugee status. In fact, that very argument represents an acknowledgment by the Ministry that the man will be forced to reside in the transfer section unless he abandons that intention,” the court said.

This ruling is likely to help improve the rights of asylum seekers who are detained at the airport through a unilateral decision by Korean immigration.

“‘Airport refugees’ who are forcibly detained in transfer sections haven’t been allowed to leave the airport even when they file administrative lawsuits to gain acknowledgment of refugee status. But since the court stipulated in this ruling that such actions constitute ‘illegal detention,’ I don’t think the Ministry of Justice will be able to avoid its responsibility by leaving these people there indefinitely,” said Lee Han-jae, an attorney with the law firm Duroo who represented the African asylum seeker.

Previously, a family from Angola also stayed in the transfer section of the airport terminal for 287 days when Korean immigration refused to review their request for refugee status on the grounds that the purpose of their visit was unclear.

The African man is preparing his refugee application with the help of Lee, the attorney, and a nonprofit group.

By Jang Ye-ji, staff reporter

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