A/HRC/7/NGO/30–February 22,2008

11월 24th, 2010 | Posted by admin in (i) Submissions to the UN | 1. Documents from Minbyun

A/HRC/7/NGO/30
22 February 2008

HUMAN RIGHTS COUNCIL
Seventh session
Agenda item 3
PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS, CIVIL,
POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS, INCLUDING
THE RIGHT TO DEVELOPMENT
Written statement* submitted by MINBYUN-Lawyers for a Democratic Society,
a non-governmental organization in special consultative status
The Secretary-General has received the following written statement which is
circulated in accordance with Economic and Social Council resolution 1996/31.
[20 February 2008]
• This written statement is issued, unedited, in the language(s) received from the
submitting non-governmental organization(s).

The human rights of migrants in the Republic of Korea
I. Human Rights Situation in General
1. MINBYUN appreciates the attention of the Human Rights Council(HRC) and the
Special Rapporteur on the Human Rights of Migrants to the situation of migrants
in the Republic of Korea(ROK), in particular the Special Rapporteur’s visit
(December 2006) and report (March 2007).
2. As mentioned in the Human Rights Committee’s periodic report on the ROK
(October 2006), migrants in the ROK face “persistent discriminatory treatment
and abuse” and are denied “equal access to social services and educational
facilities as well as the right to form trade unions.”
3. We share the following concerns expressed in the Special Rapporteur’s report:
1) The ROK has not ratified the International Convention on the Protection of
the Rights of All Migrant Workers and Members of their Families(ICPRMW).
2) Restrictions under the Employment Permit System(EPS) place migrant
workers in a vulnerability situation and are inconsistent with international
human rights treaties to which the ROK is party.
3) The policy of deportation of irregular migrants is insufficient and has led to
human rights violations.
4) Migrant women are vulnerable to multiple violations due to gender and status
including violence at home, in their communities and at their workplaces.
II. Issues of Special Concern
1) Inadequate Revision of EPS
4. The Special Rapporteur recommends that the EPS be revised in accordance with
international human rights treaties to which the ROK is party, noting this would
require means for unskilled migrant workers to lodge just complaints against
employers. We are concerned that no substantial revisions of EPS have been made.
5. As noted by the Special Rapporteur, the EPS binds migrant workers to employers,
restricting their freedom of movement. To change employers a migrant worker
must receive permission from his/her employer, register with the Labor Ministry
and find new employment within two months or face becoming irregular. The
chance to change employers is restricted to three times except in exceptional
circumstances. Many migrant workers are therefore forced to remain in
workplaces where their rights are violated.
6. As the Special Rapporteur notes, because EPS requires them to extend contracts
with their employers annually, migrant workers are often fearful of lodging
complaints when work conditions are inadequate.
1 The Korean Confederation of Trade Unions, the Seoul-Gyeonggi-Incheon Migrants’ Trade Union and the
Emergency Committee to Stop Repression against Migrants also share the views expressed in this
statement.
7. As noted by the Special Rapporteur, the three-year residence period under EPS is
often not sufficient due to high debts incurred in the migration process prompting
many migrants to stay beyond three years. A recent revision has allowed for the
extension of residences for an additional three years, but only when a worker is
invited by his/her employer and he/she leave the country for one month.
8. The restrictions placed on migrant workers’ freedom of movement, three-year
residence terms and annual contract renewals are factors that induce irregularity
among migrant workers who leave legally-registered employers or overstay
residence periods.
2) Irregular Migrant Workers
9. The ROK Government’s policy towards irregular migrants is one of forced
deportation. As the Special Rapporteur notes, this policy is inconsistent with the
guarantees against forced return in Article 13 of the International Convention of
Civil and Political Rights(ICCPR), which the ROK has signed. We are concerned
that while this policy has not solved the problem of irregular migrants it has led to
severe human rights abuses.
10. The Special Rapporteur notes the 2005 opinion of the National Human Rights
Commission that the rights of irregular migrants are violated during immigration
operations. He also notes that issue of detention orders by immigration officials
(under the Immigration Control Act) appears contradictory to the constitutional
provision requiring they be issued by a judge.
11. Migrants have been injured while fleeing, handcuffed, held for hours in
immigration vans and beaten in the course of crackdowns. Illegal procedures such
as unwarranted building entries and the presentation of detention orders after the
fact of arrest rather have also been employed.
12. The Special Rapporteur notes the poor conditions of detention. Detainees are often
subject to verbal and physical abuse and deprived of legally stipulated exercise
time, adequate medical treatment and adequate assistance in receiving unpaid
wages and handling other workplace-related problems.
13. On 11 February 2007 a fire broke out at Yeosu Detention Center killing 10
migrants and injuring 17 others. At that time civil society expressed the opinion
that the cause of this tragedy was the government’s policy of detention and
deportation. We are concerned that one year afterwards nothing in the
government’s policy has changed.
14. The case of Suwash Budathoki (born 1978, Nepalese) deserves special attention. In
July 2007 Budathoki was stopped by police without reason, turned over to
Immigration Authorities when found to be irregular and detained. A complaint was
submitted to the National Human Rights Commission concerning the illegality of
his arrest. Budathoki waited in detention for the results of the complaint.
15. Budathoki contracted severe diabetes due to poor detention-center conditions.
Despite his condition the Ministry of Justice turned down an application for his
temporary release in January 2008.
16. Budathoki’s case drew attention from civil society. On 30 January 2008 he was
taken out of the detention center gagged and bound in the back of a bread-delivery
vehicle to avoid the notice of supporters and deported without receiving treatment.
C. Proposed Immigration Law Revision
17. On 8 November 2007, the Ministry of Justice announced a planned proposal for
the revision of Immigration Control Law, expected to be considered in 2008. We
are concerned that this proposal will further deteriorate the rights of migrants.
18. The proposal bestows immigration officers with the right to make unwarranted
building-entries. It also gives them the authority to stop and question anyone who
appears in violating immigration law and legalizes the presentation of detention
orders after arrests, rather than before.
19. The proposal stipulates multiple conditions under which applications for refugee
status can be denied before processed, limiting the rights of refugees. A stipulation
that refugee status can be revoked if an individual is suspected as a threat to
security or public order also has the potential to restrict refugees’ freedom of
expression.
D. Restrictions on Union Activities
20. The right of all workers, regardless of status, to participate in union activities is
protected in ROK and international law. We are concerned that the ROK
Government has taken several measures to limit this right, especially regarding
irregular migrant workers.
21. On 24 April 2005 irregular migrant workers formed the Seoul-Gyeonggi-Incheon
Migrants’ Trade Union(MTU). The Ministry of Labor initially rejected the union’s
official status on the basis that its officers, as irregular migrants, were not equally
protected under labor law. This decision was first upheld by a district court and
then overturned by the Seoul High Court, which ruled that irregular migrant
workers have the right to join and form unions. The Ministry of Labor has
appealed to the Supreme Court, where a decision is pending.
22. We are concerned that the Government has targeted MTU leadership so as to stop
the union’s activities. Most recently, on 27 November 2007 the MTU president,
vice president and general secretary were all arrested at roughly the same time at
three separate locations and detained. In each case, as many as 15 immigration
officers lay in waiting to make the arrest. Despite domestic and international
protest, the men were removed from their cells in the middle of the night, taken
out a hole in the fence at the back of the detention center to avoid supporters’
notice and deported early in the morning of 13 December. The deportation
occurred without trial and while a Human Rights Commission investigation was
still underway. A constitutional appeal is currently being prepared concerning the
unconstitutionality of the deportation including the lack of trail before it took place.
23. MTU General Secretary Moniruzzaman ABM was accompanied by immigration
officers on his flight to Bangladesh. He was kept for several hours in a Hong Kong
lounge during a stop over. At this time he was forbidden to use the computers and
telephones in the lounge to contact friends and family in the ROK and Bangladesh.
Upon arriving in Bangladesh he was questioned by authorities, who had received
written notice from the ROK Government concerning his activities in the ROK.
We are concerned that the violations against irregular migrant workers engaged in
lawful union activities follow them to their home countries.
III. Recommendations
We recommend that the HRC urge the ROK Government to:
1) implement the recommendations made by the Human Rights Committee and the
Special Rapporteur.
2) set up comprehensive legal framework for all migrants regardless of their status
using a rights-based approach, including a comprehensive solution to the problem
of irregular migrants, and to ratify the ICRMW.
3) allow an NGO investigation of the conditions in detention centers and consider
other rights-based alternatives including the possibility of closing detention
centers.
4) cease its efforts to stop the union activities of irregular migrant workers in
accordance with the South Korean Constitution, ILO precedents and the principle
of freedom of association.
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