UNHCR Comments on the Government’s Legislative Proposal to Amend the Immigration Act regarding Immigration Detention in the Republic of Korea

In conclusion, UNHCR submits that:
• The right to seek asylum and the right to liberty and security of person and freedom of movement provided in international refugee and human rights law mean that the detention of refugees and asylum-seekers should be a measure of last resort, with liberty being the default position.
• Exceptional detention of refugees and asylum-seekers can only be applied where it has been individually determined that it is necessary, reasonable in all circumstances and proportionate to a legitimate purpose.
• In principle, detention for the purposes of expulsion of those seeking international protection can only occur after the asylum claim has been finally determined and rejected.
• Detention while pursuing a deportation can only be maintained while the deportation is realistic and pursued with due diligence.
• Detention is never in the best interests of the child, which must be a primary consideration in any decision affecting them. Including for children, alternatives to detention is the best measure to ensure that immigration detention is only applied as a measure of last resort, as well as being practical and effective in ensuring compliance with immigration and asylum procedures.
• UNHCR welcomes the objective of the Proposal to limit indefinite detention of refugees and asylum-seekers. However, UNHCR is concerned that the grounds for and length of detention (and re-detention) provided in the Proposal do not afford sufficient protection and safeguards that reflect the exceptional nature of detention.
• UNHCR appreciates the proposed provisions to ensure an independent review of detention and opportunity for those subject to detention orders to state their opinion. UNHCR recommends that additional revisions to substantively ensure independence and neutrality of the Committee.