Korean Job Discussion Forums

[be11a]

Sorry (not really) for the hack-and-paste, but Professor Wagner's comment to a recent post at Hub of Sparkle clears up a number of misconceptions re the campaign and the Commission's response:


[...] I also filed a complaint with the NHRCK on the E-2 visa issue. The complaint I filed on February 4, 2007 was also linked with 49 other complaints. And everyone, including myself, has received the same notice that you�ve posted.

While the notice is confusing and gets some minor and major points wrong (which I�ll save mention of for another comment if necessary) it is in fact good news. The good news is that all of the cases have been transferred to NHRCK�s Human Rights Policy Division (yes it is part of the NHRCK). This is good news because the NHRCK has decided that the E-2 visa in-country medical tests (HIV and drugs) presents a �grave[]� issue that goes beyond granting individual remedies (i.e. to the 50 who filed) and instead requires an examination of the nation�s human rights policy and culture change. This doesn�t mean the NHRCK thinks the individuals who filed the complaints aren�t important. On the contrary, the NHRCK has recognized that the issue these individuals have alerted it to affects a broad class of individuals and is of significance to national human rights policy. The NHRCK wasn�t the only group who thought our individual complaints were of significance, the international NGO Human Rights Watch also thought an important issue had been raised and showed its support by issuing an open letter to the NHRCK.

More good news comes with the fact that the process of addressing Korea�s national policy on HIV/AIDS has already begun. A recent Korea Times article explains that

�Korea is moving to scrap its policy of banning foreigners with HIV/AIDS. The plan emerged in the face of protest from foreigners and legal experts against what they call discriminatory measures.�

The reporter is jumping the gun a bit � Korea is not yet fully committed to abandoning its AIDS policy for foreigners � but it is true that the issue is being addressed at the highest levels of government. It�s also true that the discussion began because of activism by foreigners.

As far as the E-2 tests are concerned, a Korea Immigration Service official explained �if the Constitutional Court rules that making foreign instructors submit documents on HIV tests is unconstitutional, we may have to scrap the requirement.� Contrast that with a statement from an immigration official shortly after the first complaints had been filed claiming that appealing to �the constitutional basic rights of foreigners . . . misunderstands the relevant Korean law.�

The Constitutional Court saw things differently. The case filed by the Public Interest Law firm Gonggam on behalf of E-2 visa holders would have been denied by the Constitutional Court if it had not raised a cognizable issue, however, the E-2 visa case has been accepted by the court. While it has not yet been report, this first hurdle was cleared on July 31, 2009 and an official case number (2009헌마358) has been assigned. This means that the case will proceed to the trial phase. This is particularly remarkable considering that the many thought the case would be rejected as a constitutional issue of foreigners� rights (although most agreed there was at least an administrative claim that could be heard by a lower court). It�s now clear that this case goes beyond English teachers and the E-2 visa and will address the limitations on the power of the government to implement measures affecting foreigners residing in Korea under the protection of the Constitution.

The transfer of the NHRCK complaints to their Human Rights Policy division corresponds with the acceptance of the E-2 case by the Constitutional Court and the elevation of the issue to national importance.

In addition to its national significance, the E-2 visa issue, particularly the HIV restrictions, has also attracted considerable international attention. UN Secretary General Ban Ki Moon called on Korea to eliminate its discriminatory HIV after reporting of the Constitutional Court case. The JoongAng Daily linked the E-2 visa Constitutional Court case with the Secretary General�s statement here, the Choson Ilbo did the same here, and the Korea Times here.

More recently the issue of Korea�s HIV Restrictions was raised at the 9th International Congress on AIDS in Asia and the Pacific (ICCAP). International groups such as UNAIDS, the International AIDS Society, the International Organization for Migration, the AIDS Society of Asia and the Pacific (ASAP), and the Korea HIV/AIDS Center (among other) were in attendance and made aware of Korea�s newest HIV restrictions under the E-2 visa.

The HIV restrictions are of special concern to the ICCAP organizers as Korea plans to be the host of the 10th International Congress on AIDS in Asia and the Pacific in 2011. At the close of a presentation on Korea�s HIV restrictions a discussion broke out over whether Korea was a dignified host for the next ICCAP. It is encouraging to know that Myong-Hwan Cho, President of the AIDS Society of Asia and the Pacific (ASAP), is aware of the concerns over Korea as a host. ASAP is one of the hosts of the ICCAP, and President Cho, as a Korean national and representative of ASAP, will have the opportunity to make sure Korean authorities are fully aware of all concerns.

It�s likely that in the lead up to the 2011 ICCAP we will see many changes in HIV policy here in Korea, in fact, it seems we are seeing them already.

There are still problems however �

While the central authorities are well aware that the HIV testing regime is on its way out, provincial authorities haven�t gotten the message. The Ulsan Provincial Office of Education, for example, has recently instituted a policy of requiring foreign English teachers to retake AIDS and drugs tests every year. Not only is this requirement above and beyond the requirements of the Immigration Service, but there are no laws granting the Education Offices the authority for creating these requirements. This retesting regime is proving an embarrassment to the central government and even the KIS has given a statement explaining that if an employee continues with an employer there is no need to retest for AIDS and drugs when renewing a contract. It�s a case of the left hand not knowing what the right hand is doing.

A teacher who agreed to the first test on arrival but � when pressured at the close of the first year to take a second test or not be offered a new contract � this teacher refused the retest and has begun a legal challenge against the retesting policy.

It�s very important to find out how many other provinces are implementing similar policies. We know that many (most?) have not done so. It would be relatively simple to get Education Offices to drop these tests if teachers would let it be known that � while the warm Korean hospitality they have received is greatly appreciated � being treated as foreign AIDS threat is not.

I encourage teachers to let us know if you are being asked to be retested for AIDS and drugs by your employers (khu.lawschool[at]gmail.com).

Finally, I would like to thank individuals who have already participated in letting the NHRCK know that it was time for Korea to address its discriminatory E-2 visa policy: your efforts have resulted in Korea taking a more enlightened approach towards non-citizens. Your complaints were respectful yet assertive, and those complaints are being respectfully considered. You believed that Korea had the capacity to change and we are seeing that it does.

It�s time we put to rest the cynical expat argument that Korea can�t change or doesn�t care what foreigners have to say. Even worse were the irresponsible posts and comments by some foreign residents saying that even talking about our human rights concerns would result in a violation of visa status and be �illegal�. Rumors circulated on the internet sites saying that filing a report with the NHRCK would result in arrest and deportation. We have seen for ourselves that this was never true; in fact, foreigners are encouraged to contact the NHRCK.

I think we need to recognize and appreciate that Korea has duly acknowledged our concerns and is in the process of working toward a solution. I�ve notice a trend with some non-citizens here who repeatedly stress that this is Korea and that only Koreans make the rules and only Koreans can change them if they want. This view is absolutely correct, but recall that the rules that Koreans have set up say that our rights matter, our opinions should be heard, and that bad rules should be abolished.


http://www.koreasparkle.com/2009/09/human-rights-commission-responds/#comment-12393

[Mr. Pink]

Other countries screen for HIV/AIDs when getting a work permit. I guess Korea should be screening all visa holders, then the E2s can stop complaining about unfair treatment.

All the E2 people who whined at unfair treatment would probably have a stroke if they saw the medical list that one has to pass to get a work visa in China.

[tzechuk]

[danseonsaeng]

SMOE most certainly requires yearly AIDS/drug testing.

Are they not supposed to?

[Ilsanman]

The whole thing is about sour grapes. Some E-2 guys want all the privileges of an F-2 visa holder.

[danseonsaeng]

Personally, I'd like all teachers to submit to yearly drug testing. It's just unfair practice to single out foreigners as the only ones subjected to such a thing.

[Juregen]

[big_fella1]

[PatrickGHBusan]

What the article says in some ways is that the testing for AIDS seems likely to remain but that a carrier of AIDS would not be banned from possible employement....

Note that the lone legal complaint is not about the test itself but more about being asked to submit a second test a year later...slightly different battle.

The drug screen, health checks and criminal check all remain. I do suggest that with the current H1N1 pandemic about to hit its second wave as flu season nears the government may have trouble with the removal of this AIDS test...public pressure as fear of disease mounts (thank you bad media here... ) will affect the government.

Frankly, they should simply save themselves the headache and make all testing an off-shore requirement for visa issuance. That would simplify things for the K-government and remove the human rights issue.

Finally, all that is happening is an investigation..it could be the investigation at its end states nothing is wrong. It would not be the first such "for show" investigation.

Time will tell.

[Mr. Pink]

[Scouse Mouse]

[Mr. Pink]

[big_fella1]

All public school staff require health and criminal checks regardless of visa (E2, F2, F4, and F5). However the only 2 visa's for which immigration requires a health check are the E2 and the E6.