Need to improve mandatory notification system to protect the right to defense of unregistered foreigners suffering from overdue wages
Recommendation to the minister of justice to establish new regulations in “Enforcement Decree of the Immigration Act”
On July 26, 2024, National Human Rights Commission of Korea recommended to the minister of justice to establish new regulations about “investigation and labor supervision by local employment and labor offices” for violations of labor laws including overdue wages so that it is included in the scope of work that is exempt from the obligation for notification under the “Enforcement Decree of the Immigration Act.” This is to protect the right of unregistered foreigners who have suffered from overdue wages during their stay in Korea.
The Petitioner filed a petition with the National Human Rights Commission of Korea, claiming that the unregistered foreigner’s right to defense was violated. The victim, who filed a petition with a local employment and labor office for overdue severance pay and wages, appeared at the local office for investigation, but a police officer who was dispatched upon the employer’s report confirmed that the foreigner was unregistered and arrested the victim to hand over to the immigration office.
As public officials are obliged to notify the immigration office about unregistered foreigners, the police officer notified OO immigration office, and the office confirmed that the period of stay for the victim had expired. The deportation order was issued pursuant to Article 59 of the Immigration Act. Therefore, the Commission’s Committee on Human Rights Violations 2 concluded that the official performed his duties under the current law and the case did not violate human rights. The Committee dismissed the petition under Article 39.1.2 of the “National Human Rights Commission Act.”
However, the Committee also held that unregistered foreigners may give up on protection of their rights for fear of being deported, or some people may take advantage of their vulnerable circumstances if public officials of local employment and labor office who are in charge of investigation and protection of rights for unregistered foreigners suffering from overdue wages are also obliged to report them. Accordingly, the Committee reviewed institutions for improvement under Article 19.1 and 25.1 of the “National Human Rights Commission Act” in order to guarantee the right to defense of unregistered foreigners who suffer from violations of labor-related laws.
The National Human Rights Commission of Korea had recommended that postponement or exemption of notification obligation by public officials in charge of protecting rights of migrants be stipulated in relevant laws through “Policy recommendations for improvement of human rights of foreign workers residing in South Korea” (2003.2.10), “Suggestion for partial amendment of the Immigration Act,” (2007.12.6), and “Recommendations for improvement measures to guarantee the right to education of migrant children” (2010.12.30).
With the revision of the Immigration Act on January 26, 2012, and the revision of Enforcement Decree of the Immigration Act on October 15, 2012, a new provision was established for public officials to be exempted from the notification obligation. However, public officials of Ministry of Employment and Labor who are working on protection of rights for those who suffer from violations of labor-related laws were excluded from the exemption cases of notification obligation. As a result, there have been cases where foreigners’ right to defense has been violated as they were handed over to Immigration Office upon the report of their employer while they were seeking protection of rights for overdue wages, as it was the case of the victim.
Accordingly, the National Human Rights Commission of Korea judged that “investigation and labor supervision by local employment and labor offices” should be included in the scope of work that is exempted from the notification obligation stipulated in Article 70.2 of Enforcement Decree of the Immigration Act.” The Commission recommended this to the minister of justice, the head of the central administrative agency in charge of immigration affairs.
