Informe provisional - Informe núm. 367, Marzo 2013

Caso núm. 2620 (República de Corea) - Fecha de presentación de la queja:: 18-DIC-07 - Cerrado

Allegations: The complainants allege that the Government refused to register the Migrants’ Trade Union (MTU) and carried out a targeted crackdown on this union by successively arresting its Presidents Anwar Hossain, Kajiman Khapung and Toran Limbu, Vice-Presidents Raj Kumar Gurung (Raju) and Abdus Sabur and General Secretary Abul Basher Moniruzzaman (Masum), and subsequently deporting many of them. The complainants add that this has taken place against a background of generalized discrimination against migrant workers geared to create a low-wage labour force that is easy to exploit

1. 532. The Committee last examined this case on its merits at its November 2011 meeting, when it presented an interim report to the Governing Body [see 362nd Report, approved by the Governing Body at its 312th Session (2011), paras 573–600].
2. 533. The Korean Confederation of Trade Unions (KCTU) provided additional information in a communication dated 11 May 2012.
3. 534. The Government sent its observations in a communication dated 24 September 2012.
4. 535. The Republic of Korea has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 536. At its November 2011 meeting, the Committee made the following recommendations [see 362nd Report, para. 600]:
   • (a) The Committee urges the Government to refrain from any measures which might involve a risk of serious interference with trade union activities and might lead to the arrest and deportation of trade union leaders for reasons related to their election to trade union office. It requests the Government to enforce the decision of the Administrative Court cancelling all punitive measures until a final judgement has been rendered, including by granting the renewal of Mr Catuira’s residence permit. The Committee requests the Government to submit detailed information on the current status of Mr Catuira’s work permit in reply to the complainant’s communication of 28 September 2011 and any other information related to this case.
   • (b) The Committee expresses its firm expectation that the Government will proceed with the registration of the MTU without delay, and supply full particulars in relation to this matter.
   • (c) The Committee once again requests the Government to ensure that the Committee’s conclusions, particularly those concerning the freedom of association rights of migrant workers, are submitted for the Supreme Court’s consideration and to provide a copy of the Supreme Court’s decision once it is handed down.
   • (d) The Committee once again requests the Government to undertake an in-depth review of the situation concerning the status of migrant workers in full consultation with the social partners concerned, so as to fully ensure and safeguard the fundamental rights to freedom of association and collective bargaining of all migrant workers, whether in a regular or irregular situation and in conformity with freedom of association principles, and to prioritize dialogue with the social partners concerned as a means to find negotiated solutions to the issues faced by these workers. The Committee requests to be kept informed of the progress made in this regard.

B. Additional information submitted by the complainant

1. 537. In its communication dated 11 May 2012, the KCTU sent new information in relation to the situation of the now former President of the Migrants Trade Union (MTU), Mr Michel Catuira. According to the complainant, Mr Michel Catuira was denied re-entry into Korea when he returned on 30 April 2012 after having left to be with family in the Philippines in February 2012. He had planned to return to Korea to renew his G-1 visa, and to handle matters in relation to his court case and other cases related to the MTU. Since he could not get his residence permit, before leaving Korea, he had applied for and was granted a G 1 visa in November 2011, valid until 7 May 2012. He also consulted with immigration officials as to whether he would need an additional visa to be able to re-enter Korea, and was told that the G-1 visa allowed travel back and forth from Korea.
2. 538. When he attempted to pass through the immigration inspection, he was directed to the airport Immigration Service Office where he had to wait for several hours and was questioned about his visa status, his plans while in Korea and if he had purchased a return ticket. While in the immigration office, an officer told him that his name had been on a list of individuals barred from entry since February 2011 and that he was barred from entering Korea for five years. He argued that he had been granted a G-1 visa, which should invalidate the travel ban. Several hours later, he was informed that he would be sent back to the Philippines, most likely the next morning. He expressed his desire to file an appeal against the denial of entry to Korea several times. He was then escorted to a holding area for foreigners scheduled to be repatriated. In the holding cell, he was allowed to use a phone and contact a friend. The friend was able to contact people related to MTU who later notified the National Human Rights Commission (NHRC) and his lawyer. He once again expressed his desire to file an appeal. He was told he or his lawyers would have to call the Ministry of Justice, but was not allowed to use the phone. An officer later told him that he had the right to refuse to leave the holding cell but that this might result in police intervention. He was later allowed to call a MTU volunteer who called the holding area and was told that he would most likely be deported at 7.30 a.m. Shortly after, several police officers, immigrations officers and airport staff escorted him to the boarding gate. According to Mr Catuira, he was intimidated and verbally harassed during this process. The officers told him they did not care about his rights and that since he was not Korean, he would have to leave without an appeal. Immigration officers gave his passport to the flight attendants. Upon arriving in Manila at 1 p.m., he was taken to the Philippine Immigration Office. His passport had still not been returned to him at this time. At the office, he was briefly interviewed and was asked to make a written statement about the incident. After filling out a form and making a statement, his passport was returned to him.
3. 539. A complaint was filed with the NHRC by migrants’ rights activists in South Korea on 1 May 2012 and Mr Catuira’s lawyers and Korean migrants’ rights activists are discussing further actions. Mr Catuira has filed a formal complaint against the Cebu Pacific representative who harassed him in the holding area. He also filed complaints with the South Korean embassy in the Philippines and the Philippines Ministry of Foreign Affairs. He has contacted migrants’ rights organizations in the Philippines who are discussing further actions.

C. The Government’s reply

1. 540. In its communication dated 24 September 2012, the Government indicates that Michel Catuira, former MTU President, left Korea as holder of a G-1 visa (visa issued to foreigners who do not fall under other visa categories and intend to enter Korea to receive medical treatment or to handle litigation matters) in February 2012 but was denied entry at Incheon International Airport when he attempted to return to Korea on 30 April 2012 and was deported by the Immigration Service on 1 May 2012. The Government objects to the complainant’s allegation that the actions taken by the Government were intended to interfere with the trade union activities of the MTU.
2. 541. The Government recalls that Mr Catuira initially entered Korea in February 2009 with an E-9 visa (visa issued to foreigners who are in non-professional jobs and satisfy the requirements for working in Korea under the Act on Employment, etc. of Foreign Workers) and worked in a company for about a year. In March 2010, he filed an application for change of workplace and extension of sojourn period as he entered into a new employment contract with Mr Park, the owner of a company called “Dream”. However, the Seoul Immigration Service cancelled his sojourn permit in February 2011 and ordered deportation, stating that his application was not true to the fact because the company by the name of “Dream” did not exist at the time of application in March 2010 and he actually did not engage in any working activities.
3. 542. The Government further recalls that, in February 2011, Mr Catuira brought the case to the Seoul Administrative Court against the cancellation of his sojourn permit as well as the deportation order issued by the Seoul Immigration Service. Mr Catuira won in the first instance. The Administrative Court issued a verdict in September 2011 ordering the cancellation of measures taken by the Seoul Immigration Service. The court judged that there were no substantial grounds to believe that Mr Catuira obtained the permission by false or other unlawful means since, at the time Mr Catuira received the workplace change permission to obtain a sojourn permit in March 2010, the company concerned was in operation. However, the Seoul Immigration Service appealed against the court decision, and the Seoul High Court overturned the ruling of the first instance court on 24 May 2012. The appellate court acknowledged that Mr Catuira turned down about 150 job references offered by the Job Centre, with the intention of signing a contract with Mr Park, a Seoul district union official of the KCTU. It also held that Mr Park’s and Mr Catuira’s statements alone were not enough to substantiate the claim that when Mr Park entered into an employment contract with Mr Catuira on 5 March 2010, Mr Park’s business was in operation and it was shut down later in May 2010. The court found that Mr Catuira only signed a paper contract to maintain his visa status to keep working as the president of the MTU. The court also stated that, based on the testimonies of several witnesses and evidence submitted, it is hard to believe that “Dream” was actually up and running and Mr Catuira was working there. Accordingly, the court ruled that the revocation of Mr Catuira’s sojourn permit was legitimate because Mr Catuira obtained the permission “by false or other unlawful means” under section 89(1) No. 2 of the Immigration Control Act. Mr Catuira did not accept the ruling and appealed to the Supreme Court where the case is currently pending.
4. 543. As to the grounds for denying Mr Catuira’s entry into Korea, the Government indicates that the Seoul Immigration Service has denied his entry in accordance with section 11(1) No. 3 and 4 of the Immigration Control Act. It is an established principle of international law that a country can prohibit or disallow a foreigner from entering its territory if his/her entry is deemed to be against its national interests. According to the Government, this means that prohibition or denial of entry is a matter of sovereign discretion which is determined based on national circumstances or social environment. Accordingly, under section 11 of the Immigration Control Act, the Ministry of Justice may prohibit entry of a person deemed highly likely to commit any act detrimental to the interests of Korea or public safety, or of a person deemed likely to commit any act detrimental to the economic or social order or the good morals. This provision applies to both legal and illegal migrants. In February 2011, the Seoul Immigration Service cancelled Mr Catuira’s sojourn permit and ordered deportation in accordance with section 8(1), No. 2 and 4, of the Immigration Control Act, on the grounds that Mr Catuira had submitted in March 2010 an application for the extension of sojourn permission containing false information that he was working at an establishment which in fact had been shut down, which is an act detrimental to the economic or social order. Thus, according to the Government, the prohibition of entry imposed on Mr Catuira under section 11 of the Immigration Control Act is a legitimate action that was taken by the Government with no relation to his trade union activities.
5. 544. As regards the complainant’s claims that the Government deprived Mr Catuira of the possibility to file an appeal against the denial of entry by not accepting his request for suspension of deportation, and that Mr Catuira had planned to return to Korea to handle matters in relation to his court case, the Government states that Mr Catuira had already made sufficient statements in the first and second instances before he left Korea in February 2012 and, when he was denied entry, two lawyers were handling his case as his proxies and the proceedings of the second instance (appeals trial) had already been completed with only the verdict remaining to be delivered. In the Government’s view, it was therefore unnecessary to give him a chance to appeal against the denial of entry.
6. 545. Concerning the deportation of Mr Catuira, the Government refers to section 76 of the Immigration Control Act, which provides that the “head of an airplane or the forwarding agent” shall repatriate a foreigner who has been aboard if his/her entry is prohibited or declined. Accordingly, Incheon International Airport Immigration Office issued the denial of entry, instructed the airline personnel to repatriate Mr Catuira and passed his passport over to the airliner. From that moment, handling of the passport and other related documents comes under the responsibility and control of the airliner. After the denial of entry was issued, Mr Catuira not only refused to make a voluntary departure but also repeatedly refused to cooperate in the repatriation proceedings and two female immigration officers had to lift him up but did not drag him out forcefully or take any other coercive actions. Mr Catuira started to follow the repatriation proceedings afterwards but continued to verbally denounce the decision and action of the Immigration Office.
7. 546. The Government concludes that the measures taken against Mr Catuira are all in accordance with relevant laws. The Government confirms that it will provide the Supreme Court’s decision to the Committee as soon as it is issued, and that it will also inform the Committee of the Supreme Court’s ruling on another case concerning the MTU status which the Committee requested in its previous recommendations and is yet to be delivered.

D. The Committee’s conclusions

1. 547. The Committee recalls that this case concerns allegations that, against a background of an allegedly generalized discrimination against migrant workers intended to create a low wage and easily exploitable labour force, the Government refused to register the MTU and carried out a targeted crackdown on the MTU by successively arresting its officers and subsequently deporting many of them.
2. 548. The Committee further recalls that when it last examined the case, it had noted with concern the allegations that the Seoul Immigration Service refused to renew the residence permit of Mr Catuira, President of the MTU, on 16 September 2011 despite the decision of the Court. On that occasion, the Committee had requested the Government to enforce the decision of the Administrative Court cancelling all punitive measures until a final judgment had been rendered, including by granting the renewal of Mr Catuira’s residence permit as requested by the Court.
3. 549. The Committee nevertheless notes from the recent allegations that since Mr Catuira could not get his residence permit renewed despite the decision of the Administrative Court, before leaving Korea, he had applied for and was granted a G 1 visa in November 2011, valid until 7 May 2012. He had also consulted with immigration officials as to whether he would need an additional visa to be able to re-enter Korea, and was told that the G-1 visa allowed travel back and forth from Korea. The Committee notes with deep concern the new serious allegations in the complainant’s latest communication that Mr Michel Catuira was denied re-entry into Korea when he returned on 30 April 2012 after having left to be with family in the Philippines in February 2012 and was sent back to the Philippines the next morning, on 1 May 2012, without being able to file an appeal of this decision, despite numerous requests in this regard. The Committee further notes that, according to Mr Catuira, he was intimidated and verbally harassed during this process.
4. 550. The Committee also notes the complainant’s indication that a complaint was filed with the NHRC by migrants’ rights activists in South Korea on 1 May 2012, that Mr Catuira has filed a formal complaint against the Cebu Pacific representative who allegedly harassed him in the holding area, that he also filed complaints with the South Korean embassy in the Philippines and the Philippines Ministry of Foreign Affairs and that he has contacted migrants’ rights organizations in the Philippines who are discussing further actions. The Committee notes that the complainant believes that given the past actions taken by the Immigration Service against Mr Catuira and other MTU officers, the denial of Mr Catuira’s entry into Korea is part of a deliberate attempt to interfere with MTU’s union activities and in violation of past recommendations by the Committee.
5. 551. The Committee notes the Government’s indications that: (i) Michel Catuira left Korea in February 2012 as holder of a G-1 visa (visa issued to foreigners who do not fall under other visa categories and intend to enter Korea to receive medical treatment or to handle litigation matters); (ii) the Seoul Immigration Service denied Mr Catuira entry into Korea on 30 April 2012, in accordance with section 11(1) No. 3 and 4 of the Immigration Control Act, which stipulates that the Ministry of Justice may prohibit entry of a person deemed highly likely to commit any act detrimental to the interests of Korea or public safety or to the economic or social order or good morals; the Seoul Immigration Service had previously cancelled Mr Catuira’s sojourn permit and ordered deportation on the grounds that he had submitted an application for the extension of sojourn permission containing false information pursuant to section 89(1) No. 2 of the Immigration Control Act, which constitutes an act detrimental to the economic or social order; thus, according to the Government, the prohibition of entry is a legitimate action taken with no relation to Mr Catuira’s trade union activities; moreover, it is an established principle of international law that a country can prohibit or disallow a foreigner from entering its territory if this is deemed to be against its national interests (matter of sovereign discretion); (iii) during the repatriation proceedings, Mr Catuira repeatedly refused to cooperate with the airline personnel who had to lift him up without taking any coercive action; the handling of the passport came under the responsibility of the airline; and (iv) it was unnecessary to give Mr Catuira the possibility to appeal against the denial of entry, since two lawyers were handling his case, the appeal proceedings were completed with only the verdict remaining to be delivered, and he had already made sufficient statements in the first and second instances.
6. 552. As regards the pending judicial proceedings, the Committee notes that the Government indicates that the Seoul High Court overturned the ruling of the Administrative Court on 24 May 2012, holding that the statements of Mr Catuira and Mr Park, a Seoul district KCTU official, were not enough to substantiate the claim that at the conclusion of the employment contract on 5 March 2010, Mr Park’s business was in operation and shut down later in May 2010, and that based on several testimonies and evidence, it was hard to believe that “Dream” was actually up and running and Mr Catuira was working there; the appellate court thus found that Mr Catuira only signed a contract to maintain his visa status to keep working as the president of the MTU, and consequently ruled that the revocation of his sojourn permit was legitimate because he had obtained the permission “by false or other unlawful means” under section 89(1) No. 2 of the Immigration Control Act. Mr Catuira appealed against this ruling to the Supreme Court where the case is currently pending. In the Government’s view, the measures taken on Mr Catuira are all in accordance with relevant laws. It assures that both Supreme Court decisions will be supplied to the Committee as soon as these are issued.
7. 553. The Committee generally recalls, as it did in its previous examination of the case [see 362nd Report, para. 595], that Article 2 of Convention No. 87 is designed to give expression to the principle of non-discrimination in trade union matters, and the words “without distinction whatsoever” used in this Article mean that freedom of association should be guaranteed without discrimination of any kind based on occupation, sex, colour, race, beliefs, nationality, political opinion, etc. [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 209]. The Committee has interpreted this right to include the right to organize of migrant workers in an irregular situation [see Digest, op. cit., para. 214].
8. 554. The Committee recalls that the abovementioned new allegations and developments in this case arise within a framework in which, against a background of allegedly generalized discrimination against migrant workers, intended to create a low-wage and easily exploitable labour force, the Government refused to register the MTU and allegedly carried out a targeted crackdown on the MTU by successively arresting its Presidents Anwar Hossain, Kajiman Khapung and Toran Limbu, vice-Presidents Raj Kumar Gurung (Raju) and Abdus Sabur, and General Secretary Abul Basher Moniruzzaman (Masum), and subsequently deporting many of them [see 358th Report, para. 455]. The Committee also recalls that when it previously examined this case, it had recalled that measures of deportation of trade union leaders, while legal appeals are pending, may involve a risk of serious interference with trade union activities [see 362nd Report, para. 594].
9. 555. In this regard, the Committee observes with concern that, following the refusal of the Immigration Service to renew his residence permit despite the Administrative Court’s decision, and following his subsequent application for a visa, Mr Catuira was granted a G-1 visa valid until 7 May 2012, was assured by immigration officials that this visa allowed travel back and forth from Korea, was allowed to leave Korea on the basis of the G-1 visa in February 2012, but was then denied entry on 30 April 2012 and subsequently deported despite holding this visa. While noting that the Seoul High Court has overturned the first instance ruling on appeal considering that the revocation of his sojourn permission had been legitimate because he had obtained it by supplying false information, the Committee cannot but deeply regret that the Government had recourse to these measures almost one month prior to the issuance of the appellate court’s decision on 24 May 2012. In this regard, the Committee specifically expresses concern at the reason advanced by the Government for the measures taken, that is that the earlier submission by Mr Catuira of an application for sojourn permission allegedly contained false information (which in the Government’s view constitutes an act detrimental to the economic or social order under section 11 of the Immigration Control Act), as this is precisely the allegation against Mr Catuira that had been dismissed by the Administrative Court and was still being scrutinized by the Seoul High Court during the then pending legal appeal procedure. In these circumstances, the Committee must once again urge the Government to refrain from any measures which might involve a risk of serious interference with trade union activities and lead to the arrest and deportation of trade union leaders for reasons related to their election to trade union office.
10. 556. Observing that the case of Mr Catuira is currently before the Supreme Court, the Committee expects that the relevant proceedings will be concluded in an expeditious manner and requests the Government to supply the ruling as soon as it is issued. In particular, the Committee considers it necessary that the Supreme Court specifically address the question as to whether the steps to deport Mr Catuira – both in February 2011 and in April 2012 – were taken on the grounds of his legitimate trade union activities and trade union functions. In this regard, the Committee considers that the present situation illustrates all the more the utmost importance, after more than five years now, of the determination by the Supreme Court of the status of the MTU, so as to ensure that its future trade union leaders will be adequately protected.
11. 557. The Committee firmly expects that this judgment will be rendered without further delay and once again requests the Government to ensure that the Committee’s conclusions, particularly those concerning the freedom of association rights of migrant workers, are submitted for the Supreme Court’s consideration and to provide a copy of the Supreme Court’s decision concerning the MTU’s status once it is handed down. The Committee once again expresses its firm expectation that the Government will proceed with the registration of the MTU without further delay and supply full particulars in relation to this matter. Noting that a complaint was filed with the NHRC by migrants’ rights activists on 1 May 2012, the Committee also requests the Government and the complainant to keep it informed of any developments in this regard, and to provide any other information related to this case.
12. 558. Finally, the Committee once again requests the Government to undertake an in-depth review of the situation concerning the status of migrant workers in full consultation with the social partners concerned, so as to fully ensure and safeguard the fundamental rights to freedom of association and collective bargaining of all migrant workers, whether in a regular or irregular situation and in conformity with freedom of association principles, and to prioritize dialogue with the social partners concerned as a means to find negotiated solutions to the issues faced by these workers. The Committee once again requests to be kept informed of the progress made in this regard.

The Committee’s recommendations

1. 559. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee once again urges the Government to refrain from any measures which might involve a risk of serious interference with trade union activities and might lead to the arrest and deportation of trade union leaders for reasons related to their election to trade union office.
   • (b) The Committee expects that the relevant Supreme Court proceedings relating to Mr Catuira’s case will be concluded in an expeditious manner and requests the Government to supply the ruling as soon as it is issued. In particular, the Committee considers it necessary that the Supreme Court specifically address the question as to whether the steps to deport Mr Catuira – both in February 2011 and in April 2012 – were taken on the grounds of his legitimate trade union activities and trade union functions. Further noting that a complaint on this matter was filed with the NHRC by migrants’ rights activists on 1 May 2012, the Committee requests the Government and the complainant to keep it informed of any developments in this regard, and to provide any other information related to this case.
   • (c) The Committee once again expresses its firm expectation that the Government will proceed with the registration of the MTU without further delay, and supply full particulars in relation to this matter.
   • (d) The Committee firmly expects that the judgment concerning the MTU’s status will be rendered without further delay and once again requests the Government to ensure that the Committee’s conclusions, particularly those concerning the freedom of association rights of migrant workers, are submitted for the Supreme Court’s consideration and to provide a copy of the Supreme Court’s decision once it is handed down.
   • (e) The Committee once again requests the Government to undertake an in depth review of the situation concerning the status of migrant workers in full consultation with the social partners concerned, so as to fully ensure and safeguard the fundamental rights to freedom of association and collective bargaining of all migrant workers, whether in a regular or irregular situation and in conformity with freedom of association principles, and to prioritize dialogue with the social partners concerned as a means to find negotiated solutions to the issues faced by these workers. The Committee once again requests to be kept informed of the progress made in this regard.