Oct 26, 2021

Jehyoung Jeong, Attorney

Contents

Background of the unregistered long-term residents with disabilities

01

01 Background of the unregistered long-term residents with disabilities

Status of the person with disabilities

Background of the nationality of the person with disabilities

​

• The person was born in Korea in 1970, has lived in Korea for 51 years without leaving the country
• Born from a father who is Chinese nationality (the person had F-2 visa at the time) and a mother of a Korean nationlity (both parents died)
• It appears that the person concerned was legally recognized by his father at the time of birth and acquired the nationality of the Republic of China according to the former 「Private International Law」, 「Civil Law of the Republic of China」, and 「Nationality Law」.
• He obtained an F-2 visa after his birth and stayed in Korea, but after being placed in a residential institution and his father also died, the visa was not extended. (After the visa was extended once in 1993, it was expired in 1996. He has lived as an undocumented foreigner in Korea for 25 years.)

​

01 Background of the unregistered long-term residents with disabilities

Status of the persons with disabilities

Disability of the person in this case

​

​

• According to the records, he had an IQ score of 23 at the age of 1st grade in elementary school, and the IQ after middle school was 14. His disability can be classified as an intellectual disability level 1 according to the law at the time.

​

• According to the results of the disability diagnostic test in 2021, he was defined as “a person with an IQ score of 35 or less and who needs the protection of others for the rest of his life because he has extreme difficulty to adapt to daily life and social life.”

​

• He can’t speak due to speech disorder

​

• He can understand and respond to simple Korean instructions, eat and move independently, and if personal assistance services are provided, he will be able to live independently.

�

01 Background of the unregistered long-term residents with disabilities

History of his logn-term stay in residential institution

​

The person’s admission to Ingangwon(residential institution) and residence

​

• He entered Seoul Ingang School, special school operated by Ingangwon in 1984

​

• In 1985, he entered Ingangwon, a residential institution for the intellectually disabled, at the request of a public office.
• After graduating from Ingang Middle School in 1994, he did not complete school education and stayed in Ingangwon until 2021.

​

• According to the records at the time, his mother ran away and his aunt took care of him, but his aunt could no longer raise him due to her mental illness. He entered the institution at the request of Dobong-gu District Office.
• After he entered the institution, he lost contact with the people related to him including his aunt.

Issues in the process

of visa issuance and response

02

02 Issues in the process of visa issuance and response

Buck-passing by the administrative authorities

​

​

• Ingangwon decided to take steps to restore his nationality to help him become self-indepencent

​

• Based on past records, a copy of the family register was found through the Taiwanese Chinese Association, but a passport was not issued because the copy of register could not be verified.

​

• The Immigration Office refused counseling because he did not have a passport and insisted that he should resolve this issue by registering his birth as his mother has Korean nationality .

​

• The family court said it is not possible to create a new family relations register as he is not a Korean nationality

​

• Dobong-gu Office said it was not able to find his data at the time when he entered the institution.

02 Issues in the process of visa issuance and response

Risk of penalty notice

​

• In the end, after confirming that the person's nationality was the Republic of China and having an attorney accompanied to the Immigration Office, he was able to proceed with the consultation on the visa application.

​

• However, the visa can be issued only after paying a fine of 30 million won for the period of unregistered stay.

​

• As a person with disabilities without income, he was not able to pay such a huge amount and he has no family to help him.

​

• According to the Immigration Control Act, the Minister of Justice is given discretion to exempt the payment of the penalty in consideration of the specific circumstances of the undocumented.

​

02 Issues in the process of visa issuance and response

Response and outcome

​

• Ingangwon, disability advocacy groups and public interest lawyers formed a task force team to submit an opinion to the Ministry of Justice and held a press conference while submitting a complaint to the National Human Rights Commission of Korea.
• As a result, the Ministry of Justice exempted payment of the penalty of 30 million won.
• He obtained an F-2-99 (other long-term stay) visa for a period of 3 years in 5th of July, 2021.
• However, according to the Korean Act on Welfare of Persons with Disabilities, foreigners who can register as the disabled are limited to recognized refugees, permanent residents, marriage immigrants, and overseas Koreans who have reported their domestic residence.
• Even if a foreigner registers as a disabled person, it is not possible to receive the various services that should be provided to ensure the right of the disabled to live in the local community on the same level as those with disabilities of Korean nationality.

​

Issues in the process of application for simplified naturalization and response

03

Situation after the visa issuance

03 Issues in the process of application for simplified naturalization and response

• After he was qualified to stay in Korea, he has become unable to maintain a livelihood.

​

• He was informed that medical benefits and livelihood benefits, which had been provided for him (as he was recognized as a homeless patient) would be discontinued from September.

​

• Foreigners with status of residence must pay the national health insurance premiums. Therefore, the insurance premiums worth of 130,000 won per month were charged to him and he was not able to pay it.

​

Background of application for simplified naturalization

03 Issues in the process of application for simplified naturalization and response

• Therefore, in order to acquire Korean nationality as soon as possible and register as the disabled, he applied for simplified naturalization in July 22, 2021.
• According to the Nationality Act, naturalization applicants are required to “have the ability to sustain their livelihood based on their own assets or skills, or dependent on family members who share a livelihood.”
• In this regard, the enforcement regulations of the Nationality Act require financial or real estate assets of 30 million won or more, a certificate of employment, and equivalent documents.
• On the other hand, unlike the visa application, there are no exceptions to the naturalization application, such as having the Minister of Justice relax rules on the required documents.
• Based on this, the Ministry of Justice replied that it could not judge the applicant's application, and would make a decision after easing the rules on documents that must be submitted to determine the ability to sustain a livelihood through the revision of the relevant guidelines.

​

Submission of opinions and complaints

03 Issues in the process of application for simplified naturalization and response

• He is a severely disabled person who cannot find a job in the general labor market. If he is registered as the person with disability as a Korean citizen, he can receive pension for the disabled, basic livelihood benefits, vocational rehabilitation and personal assistance service to maintain a livelihood.
• The Nationality Act requires “the ability to earn a livelihood through one's function,” as a qualification for naturalization. If one is able to earn a livelihood with the support of the state due to a disability which is one's function, it can be interpreted as being able to maintain a livelihood through one’s function in this case.
• The interpretation that one can prove the ability to make a living by one's function only when submitting the documents specified in the Enforcement Regulations of the Nationality Act and the Guidelines for the Handling of Nationality is an understatement of the text of the law.
• Requiring to submit documents equivalent to those of non-disabled persons is a de facto prohibition of naturalization of persons with disabilities and constitutes discrimination against the disabled.

​

​

Problems to be solved

04

Lack of state accountability for minorities

04 Problems to be solved

​

• The persons records were not stored by the administrative authority, and the authority passed the buck to the institution.

​

​

• The case shows the reality of the disabled who have been neglected for a long time in the institution

​

​

• The related authorities passed the bucks to each other due to his unclear nationality relations
• The public officials handling immigration and nationality related work lack understanding and awareness on disabilities
• Attitude to get things done quickly only after problems being raising

​

Immigration system considering the disabled

04 Problems to be solved

​

• Although he was a migrant and a disabled person, he did not receive any support despite the need for more careful support.

​

• An application for status of residence or naturalization should not be rejected for economic reasons to persons with disabilities who have lived in Korea for a long time and have the identity of a Korean.

​

• In particular, we can find more cases like the one involved as we will see more deinstitutionalization in Korea.

​

• Therefore, considering the characteristics of the disabled, it is necessary to improve the system so that they can go through immigration and nationality-related procedures on an equal basis with persons without disabilities.

Disability support system considering migrants

04 Problems to be solved

• According to the Act on Welfare of Persons with Disabilities, the registration of a foreigner with disability is only recognized if he or she has a visa (recognized refugee, permanent resident, marriage immigrant, overseas Korean) that is confirmed to be a long-term residence in Korea.

​

• Currently, even if a foreigner is registered as a disabled person, he/she cannot receive the necessary support for independence in the local community, such as the disability pension and housing support, and it is difficult to use vocational rehabilitation facilities and welfare facilities.

​

​

• According to the UN Convention on the Rights of Persons with Disabilities, persons with disabilities whose rights must be guaranteed by States parties are not limited to Koreans.

​

• Therefore, instead of recognizing the registration of persons with disabilities according to the type of visa, foreigners who have lived in Korea for a long time or are confirmed to be residing in Korea in the future should be able to register as a person with disability.

​

• Immigrants should be able to equally use welfare services for the disabled while living in Korea after registering as a disabled person.

Law Firm Dong Chun

​

Jehyoung Jeong, Attorney

​

​