GENEVA - The Republic of Korea violated the rights of an asylum seeker from the Democratic Republic of the Congo (DRC) after refusing to process his refugee claim at Incheon International Airport and leaving him confined in the transit area for 14 months in inhumane conditions, the UN Human Rights Committee has found.
The Committee published its Views today after reviewing a case, under its Optional Protocol to consider individual complaints, concerning an asylum seeker who fled the DRC after being kidnapped by an armed rebel group and later accused of being a member of that armed group. He arrived at Incheon International Airport in February 2020 as a transit passenger and told the immigration officer that he wanted to apply for refugee status in the Republic of Korea. However, he was immediately informed that, as a transit passenger who did not go through an immigration control, he could not apply under the country's Refugee Act.
Once his refugee claim was refused for processing, he remained in the transit area until April 2021, after bringing administrative litigation and habeas corpus proceedings before domestic courts, and after the Incheon District Court ruled in his favour in June 2020. During that period, which coincided with the COVID-19 pandemic, the complainant was held in inhumane living conditions in the transit area, with little privacy and inadequate access to basic necessities.
"The transit zone of an international airport is not a legal black hole. It falls under the State Party's jurisdiction." said Hélène Tigroudja, Vice Chair of the Committee. "Forcing transit passengers, especially those seeking asylum, to stay in a restricted space for an indefinite period, under inhumane conditions, struggling for food, medical assistance and hygiene products not only amounts to placing them in legal limbo, but also left the victim of this case in a situation of distress incompatible with the Covenant."
The Committee found that the complainant was deprived of the opportunity to seek protection from refoulement because his refugee claim was rejected on formal grounds, without any review of the risks he said he would face if returned. The Committee highlighted that the Republic of Korea's obligations under the Covenant apply to all individuals within its territory and subject to its jurisdiction, including in airport transit areas. It therefore found a violation of the Covenant as the complainant was denied the procedural safeguards required to protect him from refoulement.
It also found that the complainant's 14 months in the transit area amounted to arbitrary detention. He was kept there for an indefinite period, with no way to leave except by departing the country. The Committee found that this deprivation of liberty lacked a clear legal basis, since no administrative order had been issued against him, and that the State Party had not shown the necessity or proportionality of keeping him in such a situation, in violation of the right not to be arbitrarily detained.
The Committee also found that, during the COVID-19 pandemic, the complainant was exposed to insanitary conditions, including insufficient accommodation, food and medicines, and constant lighting, in violation of the right to be treated humanly and with dignity.
"This case is an example of how denial of the right to seek asylum can trigger a chain of further violations," Tigroudja said. "The Republic of Korea must ensure that no one is left for months in any transit zone without protection, legal basis, or dignified conditions."
The Committee however noted that the Republic of Korea's courts subsequently took an important corrective approach, as the Incheon District Court and the Seoul High Court ruled in the complainant's favour and found that transit passengers should be able to apply for refugee status.
The Committee called on the Republic of Korea to provide the complainant with an effective remedy, including appropriate compensation for the material and moral harm he had suffered. It also recommended that the State Party take steps to prevent similar violations in the future.
In its decision, the Committee requested the Republic of Korea to report back within 180 days, detailing the measures it has taken to remedy the situation.
