NHRC recommends Immigration Bureau to prepare legal basis for immigration control officials to regulate foreigners’ places of employment and residence
The National Human Rights Commission of Korea (NHRC) concluded that immigration control officials went beyond their discretion as stipulated in the Immigration Control Act by entering the work places and residences of foreigners and taking custody of them without warrants or notice. Accordingly, NHRC recommended the Minister of Justice to provide a legal basis for immigration officials’ entry without notice into workplaces and residences of foreigners to prevent the reoccurrence of similar human rights violations.
Mr. Kim, 37, filed a petition with NHRC against the public officials of 「A」 Immigration Office. The petition stated that in August, 2004, immigration officials, without giving notice, entered the residence of Mr. N, 27, a legal resident from Russia. In the process, Mr. N received injuries that required two weeks to recover from. Mr. Kim, 56, another complainant who employs foreign workers, filed a petition saying that in September of 2004, officials of 「B」 Immigration Office entered his company without a warrant for arrest or prior consent and took one of his employees into custody. He also stated that they used violence, injuring the foreigner resulting in 2 weeks of recovery.
Concerning what had happened, the officials maintained that they identified themselves by presenting their identification and explained the purpose for their visit. However, NHRC concluded that even if they acknowledged the officials argument, it still fails to see that there was a procedure of obtaining the consent of the victims and complainants.
The results of NHRC’s investigation into Mr. N’s case are as follows:
- In August of 2004, Officer Chun and other 7 immigration officers of 「A」 Immigration Office raided 5 very small rooms, including Mr.N’s room, simultaneously around 22:50.
- When the victim, who was not fully dressed, did not open the door, they forced open the door, handcuffed him, and then made an identification check.
- In this process, the victim sustained an abrasion on his wrist.
The results of NHRC’s investigation into Mr. Kim’s case are as follows:
- Officer Han and other 7 immigration control officers of 「B」 Immigration Office entered Mr. Kim’s business without notice or consent to apprehend illegal residents around 17:00 in September of 2004. They arrested two foreign workers.
- Throughout this process, the complainant continued to protest the arrests and demanded a legal basis for the raid and the whole process.
- The complainant even called the police emergency number (112).
Based on the two investigations, NHRC concluded that the officers failed to obtain consent from the victims and the complainants when they went to the residences and the workplaces.
NHRC (1) reviewed the legal basis for the provision of the Immigration Control Act that allows a raid on businesses (including plants) and entry without notice into a place of residence(including houses). NHRC judged that there is no authority that enables officers to enter a business against the will of relevant persons such as business owners, building owners, etc. without presenting a warrant or obtaining prior consent. Also, (2) the Constitution adopts the principle of warrant issuance as one of the principles to prevent grave violations of a person’s liberty. In addition, (3) Criminal Procedure Law has a specific provision on the issuance of a warrant. Therefore, the officers’ acts to carry out an administrative purpose are not compliant with the issuance of a warrant.
Therefore, the raids, entry and identification process without notice, warrant or prior consent does not have a legal ground beyond 「the Investigation of Foreigner Movements by Immigration Control Officers」 prescribed in Article 81 of the Immigration Control Act. Furthermore, these acts violate due procedures, privacy protection, and human dignity and value as stipulated in Article 1 of the Constitution
Accordingly, NHRC recommended (1) the Immigration Bureau to take warning action against the two personnel responsible for the raids on the complainants and (2) the Minister of Justice to provide a legal ground for raids on businesses and entry into private residences without notice to prevent a recurrence. –The End-
[Reference]
1. Article 81 of the current Immigration Control Act regulates that 「the immigration control officials or public officials belonging to related agencies may visit the foreigner, the foreigner’s employer, a representative of an organization to which the foreigner belongs to or the foreigner’s work place, or a person who provides the foreigner with accommodation, to question or demand presentation of necessary documents.」
2. The reason the Article defined ‘visit’, ‘questioning’ and ‘demand to present necessary documents’ for investigation is that the article clearly limits the purpose and method of the investigation. It is not designed to grant the power to achieve the purpose of an administrative investigation by force against a foreigner’s clear or tacit will.
3. For reference, the Food Sanitation Act provides regulations on ‘exit and entry’, ‘inspection’, ‘collection’, and ‘reading’, which clearly grants relevant public officials the power to enter an establishment against the will of the manager of the establishment. If the manager refuses to respond, he or she could be sentenced to more than three years in prison or could be fined up to KRW 30 million, which constitutes an administrative punishment.
4. In contrast, if employers refuse to allow a ‘visit’, ‘questioning’, or a ‘demand to present necessary documents’ from immigration control officials, they could be fined an administrative order penalty of up to KRW 1 million under Article 81. This indirectly shows that the power of the officials does not include legal force.
5. 「Immigration Control and Refugee Recognition Law」of Japan is based on the issuance of a warrant. According to the Law, ‘inspection’, ‘confiscation’, or ‘search’ shall require permission from a judge. In principle, the Law does not allow these actions to be carried out at night. Therefore, the Immigration Control Act of Korea requires improvements in similar ways.
