With the rapid globalization of the 21st century, undocumented immigrants are at the center of controversy in almost every country – and Korea is no exception. Often regarded as both a threat and a burden to society, undocumented immigrants live exposed to the underbelly of Korea’s legal system. On December 10, 2019, The Ministry of Justice and the Ministry of Employment and Labor proposed a “Management Solution Regarding Undocumented Immigrants,” only to be faced with a plethora of criticism from human rights organizations. With the effectiveness of the solution also in question, the jury is still out as to whether the new solution has the capacity to solve the problem of undocumented immigrants once and for all.

Undocumented immigrant refers to a person without a citizenship or the right of permanent residence of a particular country, who stays in said country without a residence permit or beyond their permitted residence period. According to the Ministry of Justice, as of 2019, 15 percent of the total number of foreigners in Korea was found to be undocumented. Compared to 2016, this is a 57 percent increase in the total ratio of undocumented immigrants within the foreign population of Korea. With their numbers increasing by the year, the controversies surrounding them are also growing.

Both a Victim and Perpetrator

Undocumented immigrants live in unstable conditions as they are seldom guaranteed legal protection. This seems inevitable, as those who evade the legal entry procedures and tax payment in a given country cannot be given legal services. What is surprising is that most undocumented immigrants enter Korea legally through the employment license system, which may also be the root cause of their unstable status. “It is the gap between reality and the law,” says Professor Kwon Hyuk (Law School, Pusan National University). “There are many cases where a foreign worker will pay a local broker up to six times the actual legal dispatch fee in order to enter Korea through the employment license system. Such faults in the system will inevitably cause a rise in undocumented immigrants,” he said.

As a result of their unstable status, undocumented immigrants are both a victim and perpetrator of crime in Korean society. On the one hand, Korean employers often take advantage of the unstable status of undocumented immigrants. Employment of undocumented immigrants is an open secret; many employ them for hard manual labor because undocumented immigrants can be exploited on the basis of their unstable status. Moreover, they cannot receive compensation for workplace accidents, and are often subject to violence, sexual harassment, and wage exploitation.

On the other hand, undocumented immigrants are also perpetrators in Korean society. Because their status puts them in a “legal blind spot,” they are harder to arrest and punish. In fact, many of the brutal crimes committed by foreigners in Korea were committed by undocumented immigrants. In 2008, an undocumented immigrant from China murdered and mutilated a young Korean woman; two similar cases also took place in 2012 and 2014. The intolerant view that sees all undocumented immigrants as potential criminals is undoubtedly wrong; however, the lack of legal regulations surrounding undocumented immigrants should not be ignored either.

New Solution from the Ministry of Justice

On December 10, 2019, the Ministry of Justice and the Ministry of Employment and Labor proposed a new solution to regulate the problem of undocumented immigrants in Korea. The new policy included terms such as granting undocumented immigrants with the chance of re-entry under the condition that they voluntarily leave the country first. The intended effect of this policy is that it encourages a virtuous cycle of human resources exchange. The policy also promised to strengthen the regulation on undocumented immigrants by fining those who are caught after March 1, and punishing unpaid fines with permanent prohibition from entering the country.

Professor Kwon argues that such measures could be meaningful in the short term, but limitations definitely exist. “The opportunity of voluntary reporting may not seem that attractive to undocumented immigrants. They are already working in Korea with full knowledge of the danger of being found out,” he said. There is also the need to approach the problem with a more diverse approach, says Professor Lee Seung gil (Law School, Ajou University). “We must arrange supplement measures for foreign manpower policy from various different aspects, such as enhancing benefits for foreign workers, promoting education to encourage Korean citizens and foreigners to respect each other’s mutual culture and policies, and improving citizens’ awareness on foreign manpower,” he said.

To contribute to the alleviation of industrial manpower shortage, if an employer voluntarily reports undocumented immigrants working under them within the reporting period, they will be exempt from any fines and will be pardoned to employ foreign human resources for a certain period of time. “This policy aims to identify the areas of industry that lack manpower in order to achieve an appropriate placement of foreign workforce,” says Professor Lee. “One could say this is an
effective use of foreign manpower that follows the demands of the industry.”

Boon or Bane?

The new solution suggested by the Ministry of Justice faced an obstacle when the human rights organizations for immigrants held a press conference against the solution in front of the Blue House on January 9. Their biggest criticism is that the new solution is closer to a banishment than a solution. They strongly argued that it is a measure that “doesn’t see human rights, only regulation,” and that it cannot be a solution for the problem of undocumented immigrants.

The effectiveness of the new solution can also be questioned. While the ministry’s new solution seems to focus on regulation, the need for a more fundamental solution must be addressed. “Our foreign manpower policies need a fundamental change towards facilitating the inflow of highquality foreign manpower,” said Professor Lee. “ This can be done through providing immigrants with selective
benefits such as allowing employment opportunities, long-term stay and the chance to be accompanied by family,” he said. “ The most important prerequisite is to rid ourselves of the incorrect prejudice against foreign workers,” said Professor Kwon. “In the industrial society of the future, we must be able to accept them as companions, regardless of their nationality or ethnicity.”

There is no doubt that undocumented immigrants pose various problems within Korean society; the various complicated aspects of the problem may make it seem like a catch-22. If the new solution suggested by the Ministry of Justice is utilized wisely, undocumented immigrants may become a blessing rather than a problem to Korea. However, rather than simply focusing on regulation, it is important to create a positive environment that enables undocumented immigrants to autonomously escape their illegal status.