강제송환금지의 원칙에 비추어 본 출입국항에서의 난민인정절차

Article 6 of the Korean Refugee Act requires aliens who apply for refugee status at entry port to go through an additional screening procedure to decide whether the alien should be referred to the formal refugee status determination procedure. Entry port applicants are only allowed entry into Korea once they have obtained a decision for such referral. Three problems can be raised with regard to the current screening procedure: First, the standard applicable in referral decisions are unclear; secondly, should the applicant be denied referral, the statute remains unclear whether judicial review is afforded to the denial decision; and lastly, should such judicial review take place, it remains highly contested whether entry should be allowed to the aliens during the judicial review procedure. Currently, applicants waiting judicial review are in effect detained at the entry port, which raises consitutional issues as to their freedom from arbitrary detention. The three problems mentioned above is a typical case where normative interests conflict with one another: On the one hand, one should consider Korea’s duty under the Refugee Convention and the liberty of entry port asylum seekers; and on the other hand one should also consider Korea’s interest in border control, a fundamental aspect of sovereignty. The problems Korea faces with regard to refugee status application and detention at entry port has been a problem in Europe since 1980s. The European Court of Human Rights have ruled that the refusal of entry to asylum seekers at entry port amounts to a restriction on liberty, which led to detailed discourse on the circumstances in which such restriction may become legal. Since then, the European Union issued directives on refugee status determination at entry port, setting out minimum standards so that member states do not infringe on the liberty of entry port asylum seekers. Member states have implemented the directives in their own way. In the US, asylum seekers at entry port must also go through an additional screening procedure, similar to Korea. In doing so the US provides a more detailed manual on the standard applicable to the screening procedure, which should have implication on Korea’s current vague standard. This article aims to compare the laws and cases from such nations which have a longer history of experience in dealing with refugees and suggest a way forward for Korea’s refugee status determination procedure at entry port.