The constitutional complaint system known as the "trial complaint," which allows people to seek annulment of court trials on grounds such as infringement of basic rights, took effect on the 12th. The first case filed on the first day was brought by a Syrian national facing deportation from Korea.
With Korea's refugee recognition rate at a low level globally, concerns are being raised that asylum seekers may use the trial complaint system as a way to extend their stay in Korea.
◇First trial complaint by Mr. Mohammed's side: "Deportation order infringes freedom of residence and transfer"
According to legal sources, 20 trial complaints were filed with the Constitutional Court on the day before the system took effect. Among them, the first case was filed by a Syrian national, Mr. Mohammed. He filed a constitutional complaint, saying the Supreme Court's ruling in Jan. dismissing his suit to annul the immigration authorities' deportation order and protection order infringed basic rights, including personal liberty, the right to pursue happiness, and freedom of residence and transfer.
According to the public interest law center Advocates for Public Interest Law, he entered Korea in June 2013 after receiving a government conscription order following the outbreak of the Syrian civil war in 2011. He then applied for refugee status, but the Korea Immigration Service did not recognize him as a refugee and instead granted him humanitarian stay.
Even if a person is not recognized as a refugee, the government grants humanitarian stay if it determines there is a high risk of persecution upon return to the home country. These individuals are sometimes called "quasi-refugees." They can engage in economic activity in Korea, but their social security benefits are more limited than those for refugees, and their stay permits must be renewed annually.
Mr. Mohammed lived in Korea with a spouse and four children and ran a used auto parts trading company. However, after his work permit expired in 2018, he continued operating the business without extending it. He was also caught falsely inviting 35 foreigners under the pretense of auto parts transactions and employing two Iraqis who were not permitted to work.
He served one year in prison over the case and, after release, received a deportation order in Apr. 2024 and was expelled. He filed a lawsuit to overturn it but lost in the first and second trials, and on Jan. 8 this year the Supreme Court finalized the lower court ruling.
Mr. Mohammed's side is taking issue with the deportation order listing the destination as "a third country other than the country of nationality." His counsel, attorney Lee Il, said, "Sending him to a third country where safety is not guaranteed is prohibited by the Refugee Convention, the International Covenant on Civil and Political Rights, and the Convention Against Torture, but the Supreme Court misinterpreted this."
◇When refugee status is denied, 9 out of 10 file lawsuits
As in Mr. Mohammed's case, there are concerns that foreigners may use the trial complaint system to avoid deportation or delay the timing of expulsion.
According to the Ministry of Justice, there were 14,626 asylum applications last year, but only 135 people were recognized as refugees, and 41 received humanitarian stay permits. The refugee recognition rate was 2.7%, far lower than the Organization for Economic Cooperation and Development (OECD) average of about 23%. The refugee protection rate, including those with humanitarian stay, was around 7%.
However, once an asylum application is filed, the applicant can legally remain in Korea for a certain period. That is because they may stay until all procedures are completed, including the Korea Immigration Service's first-stage review, the Refugee Committee appeal, and the court litigation seeking to overturn the non-recognition decision.
The time required for each stage is 18 months for the first review, 17 months for the appeal, and about 22 months up to the Supreme Court, totaling roughly 57 months. In effect, an asylum application alone can allow a stay of nearly five years in Korea.
Asylum seekers also face relatively low litigation expenses. This is because many lawsuits to overturn non-recognition are handled pro bono by attorneys at large law firms. According to the National Court Administration's Judicial Yearbook, as of 2024, 89.8% of foreigners who received non-recognition decisions filed lawsuits.
If trial complaints are added on top of this, there is an outlook that foreigners who are not recognized as refugees or do not receive humanitarian stay permits could obtain one more review by the Constitutional Court, further extending their stay in Korea.
An official at the Ministry of Justice said, "Even after the Supreme Court finalizes a non-recognition ruling, it takes a few days to carry out the actual departure process," adding, "Considering the possibility of a trial complaint, we could allow roughly 30 days of leeway." However, the official explained that since there have been no cases yet of non-recognized asylum seekers filing a trial complaint, specific response measures need to be reviewed.
However, as the system is in its early days, moves by asylum seekers to actively use trial complaints are reportedly not yet significant. Attorney Lee Il said, "The trial complaint system is not yet widely known," and added, "Meaningful reactions will likely come only if there are cases where existing trials are overturned through trial complaints."
Attorney Kwon Young-sil of the Dongcheon Foundation for Justice said, "There are occasional cases where recognized refugees or holders of humanitarian stay permits receive deportation orders for minor crimes or administrative violations," but added, "So far, there have not been many refugee-related inquiries regarding trial complaints."