국제법상 난민의 가족재결합에 관한 연구

The aim of this study is to conduct an analysis of refugee family reunification, a subject that has not been at the centre of active debate despite its practical and political importance. It also suggests ways forward for the future development of refugee policies in Korea. The study begins by defining the concept of ‘family reunification’ as distinct from that of ‘family unity’, by analysing the content of both concepts in various international instruments. Unlike the family unity, family reunification is not guaranteed in all cases. Because family reunification is involving the entry and residence of foreign nationals, and sovereign states exercise their exclusive right to allow foreign nationals to enter and leave their territory. However, family reunification is granted in some cases. One example is a child. The Convention on the Rights of the Child establishes the rights of family reunification of children. What about refugees? There are no specific provisions concerning family reunification for refugees in the 1951 Convention relating to the Status of Refugees and the 1967 Protocol. However, the absence of such provisions in the Convention does not mean that the right to family reunification is not recognised as legitimate. Since it is practically impossible for refugees to enjoy the right to family life in their country of origin by virtue of the principle of non-refoulement, family reunification in the country of asylum may be the only means of ensuring respect for their family life. With regard to beneficiaries of international protection who are not refugees, it is considered inappropriate to base the possibility of being a sponsor for family reunification solely on their protection status. Another significant aspect of family reunification is the scope of eligible family members. In the refugee context, it is generally recommended to adopt a flexible and broad interpretation of the term ‘family’. However, the reality in the family reunification is different. As far as spouses are concerned, the legality of the marriage is often a decisive criterion in determining eligibility for family reunification. In the case of marriages that are not universally recognised, such as polygamous marriages, same-sex marriages, and child marriages, it is essential to take account of the legal framework and cultural practices of the country of asylum. This approach is important that one of the main objectives of family reunification of refugees is their integration into the country of asylum. In the context of family reunification, minor children are generally eligible. However, exceptions may be made in specified circumstances. For instance, the eligibility of parents and minor siblings for reunification depends on whether the applicant is a child. The discourse surrounding refugee family reunification has implications for the situation in South Korea. The legal basis for refugee family reunification under Korean law is set out in Article 37 of the Refugee Act. The main issues relating to the national implementation of refugee family reunification can be divided into two main areas: the eligibility of the sponsor and the scope of family members concerned. With regard to the eligibility of the sponsor, debates may arise as to the inclusion of individuals such as ‘humanitarian status holders’ who do not explicitly benefit from the possibility of family reunification under the current provisions of the Korean Refugee Act. The scope of family members concerned can be another problem. There are a number of complex issues, particularly with regard to spouses not recognised by national legislation or family members not explicitly mentioned in the Refugee Act. For example, if the sponsor is a child, their parents should be considered for family reunification, despite the Refugee Act only provides for spouses and minor children to be eligible for family reunification. Family reunification of refugees can be interpreted as a means of protecting the right to family life of individuals and fulfilling international refugee protection responsibilities. However, this may conflict with the exercise of a State's sovereign right to control immigration and regulate access to its territory. In general, the treatment of individuals enjoying international protection, including refugees, is often approached by focusing on the circumstances of the beneficiaries of protection. However, it is equally important to recognise that the implementation of international protection depends on the commitment of individual states to share their responsibilities as members of the international community. It is hoped that this study will further emphasise the importance of striking the ‘a fair balance’ between human rights and sovereignty in the formulation of relevant policies in the future.