This blog launches a new series of commentaries by legal experts on key rulings of international and national courts that affect the rights of undocumented migrants.
If you are a legal practitioner or scholar and wish to make a contribution to this series, please contact Alyna Smith at: email@example.com
About Takgon Lee
Takgon Lee is a lawyer at the Dongcheon Foundation in Korea. Dongcheon Foundation is a public interest law foundation founded by Bae, Kim and Lee, LLC, and provides legal assistance to various social minorities and nonprofit organizations. He focuses on legal advocacy for refugees and migrants in Korea. He and the Dongcheon Foundation are also part of domestic networks of NGOs working towards rights of migrant children and universal birth registration.
Right to Stay for Undocumented Migrant Children in Korea – the First Important Step
At the age of 18, F (who asked to remain anonymous) had just graduated from high school in a small city in South Korea and started working at a small factory. He had worked hard for this. He earned three certificates for welding when he was in high school – not an easy feat. He had wanted to work as soon as he graduated from high school. His mother and his three little brothers and sisters needed the money.
The only problem was that he had no residence status. He was born in Korea when his Nigerian father was working there under a working visa, and his mother under a dependent visa. However, with his father’s deportation some years later, F lost his documented status at the age of 9, along with rest of his family. Ever since, he had been undocumented. After F worked for a few months at his first job, he was caught in a routine workplace raid by immigration authorities and given an immediate detention and deportation order.
Undocumented children can, in principle, get a school education like any other child in South Korea, and are mostly (but not by law) protected from deportation until completion of high school education. This is the result of another case. In 2012, a Mongolian high school student who had lived for 10 years in Korea was deported after he had testified and acted as an interpreter at the police station for his friends who were caught in a group fight with other students. When the police found that the Mongolian teenager was undocumented, they promptly called immigration authorities to detain and deport him. This case resulted in widespread criticism from NGOs, leading the Ministry of Justice to amend regulations to defer deporting undocumented migrant children, as well as their parents, while they are attending high school – previous regulations, implemented a few years before, provided protection for children attending lower and middle school and their parents, but not those attending high school.
This policy had been touted by the Korean government internationally as one of the key policies reflecting its priorities on protection of migrant children. However, regardless of the current policy, deportations of undocumented children still take place. There is no protection for younger than school-age children, or for out-of-school teenagers.
Also, as in the case of F, the inevitable outcome for undocumented children, no matter how long they have lived in Korea, is deportation. No regularization paths exist for them. Undocumented migrants, if caught, are almost universally given deportation and detention orders, and are detained immediately. Deportation orders are usually coupled with an entry ban of 5 years or longer. There is no guarantee that someone who has been deported can obtain a visa to re-enter South Korea afterwards.
The plaintiff’s argument: His right to stay
F filed an administrative lawsuit against the Ministry of Justice seeking cancellation of the deportation order. He argued that he was completely integrated into Korean society. He was born and had lived in Korea for his whole life. He had completed 12 years of education provided by the Korean government. His friends were all Korean. He had lost contact with his father, and there were no relatives to take care of him back in Nigeria. He had limited command of English, the official language of Nigeria, and had no knowledge of regional dialects. He was unfamiliar with Nigerian culture and society. Because his mother and his siblings could stay in Korea until each child’s high school graduation, F’s deportation would mean that he would not see his family for five years or more.
In arguing for his right to stay, F cited decisions and General Comments by the United Nations Human Rights Committee applying Article 23 (right to family life) and Article 12, paragraph 4 (right to enter one’s territory) to protect migrants from deportation. He also referred extensively to caselaw of the European Court of Human Rights on a migrant’s right to privacy and family life in connection with his or her right to stay, as well as decisions from the Inter-American Court of Human Rights.
The defendant’s response
The Ministry of Justice answered that, rather than counting in this favour, they considered the long period of F’s irregular residence, as adding to his violation of immigration laws. The Ministry argued that the temporary suspension of deportation until the completion of high school education does not create a right to stay, and that immigration law provides no exceptions. The defendant also argued, correctly, that the previous caselaw had found for broad discretion by the Ministry of Justice regarding immigration decisions, including deportation orders; that is, the court tended to defer to the government’s immigration decisions, citing the state’s sovereign right to determine who to admit and deport.
The court’s decision: F cannot be deported
The Cheongju District Court rendered its decision on 17 May 2018. The Court first accepted that the Ministry of Justice has wide discretion in issuing deportation orders but found that this discretion must be exercised in conformity with certain standards. The court reiterated previous court decisions that found that the main purpose of a deportation order is to “achieve the public interest of protecting Korean nationals from foreigners with tendencies contrary to social order” and went on to limit the scope of the government’s discretion thereto.
The Court agreed with the plaintiff’s arguments regarding his integration into Korean society and found that F could not be held responsible for his transition from regular to undocumented status at age 9. The Court therefore concluded that F cannot not be viewed as a ‘foreigner with tendencies contrary to social order’.
The Court then ruled that “expelling a person such as the plaintiff, who was born in Korea and has since lived here, considering Korea as his only home, goes against a civilized nation’s constitutional principles to protect people’s dignity and to ensure their right to life”.
The Court also found that the “Republic of Korea has the duty to protect the basic human rights of the plaintiff, who has formed his social basis in Korea, so that he can stay here to live a life worthy of human beings”.
Moreover, the Court touched upon the Korean government’s duty to implement some sort of regularization scheme for people such as the plaintiff, because forcibly expelling such migrants who have finished lower, middle and high school education in Korea would mean “economic and manpower loss for Korea”.
Impact of the decision: A first step in the right direction
To my knowledge, this decision is one of the very few court decisions limiting the government’s scope of discretion in issuing deportation orders and is the first decision to cancel a deportation order of a migrant child or young person based on his or her social ties with Korean society.
The decision has come at an opportune time. A study by the National Human Rights Commission of Korea in 2011 estimated the number of undocumented migrant children under 18 at 20,000 (out of approx. 10 million Korean children), but no specific estimates exist for those who have resided in Korea for an extended period of time. To date, there has been no sincere acknowledgement or research by the Korean government of the growing presence of undocumented migrant children in Korea and no political debate on how to address the issue.
In an interesting attempt to leverage its own lack of knowledge, the Korean government argued during F’s lawsuit that cancelling F’s deportation order would have immense negative consequences for the Korean economy because the number of these young people ‘cannot even be measured’ (and thus may be very large).
That is not to say that undocumented children have been invisible. Korean NGOs working for migrants’ rights are aware of numerous cases where migrant children go through identity crisis, first realizing that they are considered ‘not Korean’, and then understanding the meaning of being without secure residence status. The impact that the lack of regularization policies has on these children and their development – anxiety and outrage at being unable to plan for any future in the country they consider home – has been observed in many cases. With the surge in labor immigration to Korea during the past decade (majority of which are from Asian countries), the population of undocumented children will surely grow.
The Court decision was remarkable because the Court for the first time clearly and directly addressed the state’s constitutional duty to ‘protect the dignity and human rights’ of undocumented migrant children and recognized their right to stay, based on their formation of social ties with the Korean society and a sense of Korean identity.
The Ministry of Justice decided to forego appealing the court decision, affirming it. F now has a residence status and plans to enter college. He is optimistic about the future of his family. It remains to be seen whether the Korean government will eventually implement a sound and concrete regularization policy in order to fulfill its ‘constitutional duty’ to protect the human rights of F’s brothers and sisters, and other children like them.
Most likely, it will require years of advocacy efforts from migrant rights organizations, but we’ve taken the first step.
 “Protecting migrants in vulnerable situations and promoting their human rights have always been a key priority for my government’s migration policies […] assisting primary and secondary education to school-aged migrants regardless of their parents’ immigration status.”, Statement by the Republic of Korea, Economic and Social Commission for Asia and the Pacific, 6 November 2017, Bangkok.
 CCPR Communication No.1959/2010 (Warsame).
 A.A. v. the United Kingdom, Üner v. the Netherlands, Butt v. Norway, etc.
 Report No. 81/10, Case 12.562, Wayne Smith, Hugo Armendariz, et al. Argentina, IACHR.
About Simon Cox
Simon Cox has been working as Migration Lawyer at Open Society Justice Initiative since 2011. He leads the Justice Initiative project advising, supporting and developing materials for migrants to use law and work with lawyers. Partnerships with migrant-led groups, legal NGOs and private lawyers. He was the Justice Initiative’s case lawyer representing 42 Bangladeshi irregular migrant claimants in the case Chowdury v Greece, ECtHR judgment in March 2017. He also acted for Ms Nikolova in CHEZ (2015), leading judgment of Court of Justice of the European Union on race discrimination against geographical communities. For more information on Simon Cox work, click here.
Justice for Migrant Farmworkers who were Shot at when Demanding their Pay
(Chowdury and 41 others against Greece, European Court of Human Rights, 30 March 2017)
Four years ago, in a Greek strawberries field, 150 farm workers were shot at when they went on strike, hospitalizing 33 men with gunshot wounds. The men had worked for up to six months tending the strawberries – sleeping next to them in the fields, under black plastic. Promised 22 Euros a day, the farmer gave them only food. Though they were migrants from Bangladesh with no papers, local police ignored them – as long as they worked. But elsewhere in Greece, irregular migrants were detained even for 18 months, in overcrowded cells. They feared this, if they quit their jobs. The farmer kept breaking his promises to pay them, but threatened to never pay what he owed if they quit. They went on strike three times, the last in March 2013, as the strawberries needed picking.
The attack caused outrage across Greece; the prosecutor charged the farmer and his shooters with assault. Represented by the Greek Council for Refugees and Hellenic League for Human Rights, the farm workers persuaded the prosecutor to add a charge of trafficking for forced labour. In July 2014, the Greek court convicted the attackers of assault, but acquitted them of trafficking, because the workers were, in the court’s view, free to leave their jobs.
Forty-two of the men took the case to the European Court of Human Rights. In March 2017, the Court upheld their claim, ruling that their irregular status, their mounting back-pay and the threats of harm by the farmer amounted to forced labour. By failing to protect them or to punish the farmer, the Greek state had violated Article 4 of the European Convention on Human Rights. The Court ordered Greece to pay the men a total of more than 500,000 Euros. In November 2017, the Greek government began paying.
Greece’s farms depend on Asian and African workers: tens of thousands of people with no papers. Despite the case, Greece still gives no legal status to farm workers. Instead, SYRIZA has adopted a weak system of suspending deportation for a few hundred people, six months at a time, making them just as exploitable.
The Chowdury judgment shows that forced labour doesn’t happen only to people in the sex industry, or to children. Migrants without papers are especially vulnerable: the solution is regularization, not threats of deportation.
Migrants Deported without proper Assessment of their Claims
(Khlaifia and 2 others against Italy, European Court of Human Rights, 15 December 2016)
In 2011, tens of thousands of people from North Africa sought to reach Italy by sea, fleeing persecution or without opportunities to create a good life. European countries had imposed visas for travel by regular shipping routes, so they took to irregular routes, often in unseaworthy or dangerous boats. 58,000 crossed that year – almost all arriving in Italy. 1,500 people drowned as they tried.
Half of the travellers came from Tunisia. Arriving in Italy, they were taken to makeshift camps and boats and prevented from leaving; but the authorities claimed no-one was detained. People who did not request asylum were not asked why they had risked their lives to reach Italy. Instead, officials took their names and information to identify their nationality. Without any discussion of whether they should be allowed to stay, they were then deported to Tunisia.
Three Tunisian men asked the European Court of Human Rights to rule that Italy had violated their human rights. After winning in a Chamber, the Court’s Grand Chamber reheard the case. The Grand Chamber agreed with the men that they were detained – and that Italy’s failure to grant them a remedy violated Article 5 of the European Convention on Human Rights. But the Court rejected their claim that the conditions were inhuman or degrading under Article 3.
Most importantly, the Grand Chamber ruled the deportation was not “collective expulsion” under Article 4 of Protocol 4 to the Convention. Though not asylum-seekers, the men argued the government still had the duty to ask each of them why they had come, before it made a deportation decision. Without this, Italy could not give individual consideration to each man’s situation. The Court rejected this, saying the men could have volunteered information.
The bar on collective expulsion is an important guarantee: each human must be considered as an individual before the drastic step of deportation is ordered. The Court’s judgment may undermine this. Expecting everyone who arrives on a leaky boat to demand to explain themselves is unrealistic. Just as Italy was able to quiz the men about their personal data, its officials could easily have asked them why they came. Border guards do this every day at regular ports of entry. Without that information to make fair, reasonable decisions, there is a serious risk of expulsion of a collective character.