Korean Job Discussion Forums

[Allthechildrenareinsane]

Via Gusts of Popular Feeling:

http://populargusts.blogspot.com/2011/10/constitutional-court-rules-on-vandom.html

I'm very curious to know how immigration actually would react in the future if anyone else on an E2 refused to submit to the tests -- would they really "suffer no adverse consequences"? Anyway, here are some excerpts from the post:


"It was over two years ago that the Constitutional Court agreed to accept Andrea Vandom's petition to find mandatory in-country HIV tests for non-Korean non-citizens on E-2 visas unconstitutional. [. . .]

"Two days ago the court gave its decision - the petition was rejected. It should be pointed out, though, that 'the Court has not ruled the tests are "constitutional" - it has rejected the petition.' [. . .]

"Benjamin Wagner's comments on the decision are worth reading:

'At 2PM on Thursday the Court rejected Andrea Vandom's petition because in the Court�s opinion the immigration office didn�t force Andrea Vandom to do the HIV and drug tests "required" by the E-2 visa, they just requested her to do the tests. The Court said that just asking for the tests isn�t enough to constitute an action by the government that would violate the rights of a foreigner in Korea.

'We had hoped the Court would decide the constitutionality of a rule that required foreigners to be tested for AIDS and drugs merely because they were foreigners and give us a clear ruling that such a practice is discriminatory under the Korean Constitution. We didn't get that but there is much that is positive about this case. First, the Court has NOT said that it is constitutional to conduct mandatory in-country HIV and drug tests on foreigners. Second, the Court�s decision cast a great deal of doubt on whether the tests are mandatory. The government's argument was that it had merely asked for Vandom's HIV status and it made no attempt to argue that mandatory rules were in place to force her (i.e., deportation, visa cancellation) to comply. If someone were to refuse a blood test and argue that a self-declaration of HIV status was all that was required, this case would offer support for that position.

'In its decision the Court focused on regulations promulgated on April 3, 2009, which the immigration office calls a "self-health statement" or a "self medical check" [. . .]

'The Court looked at questions 7 and 9, which ask:

7) Have you taken any Narcotic (Drug) or have you ever been addicted to alcohol in the last 5 years?

Yes □ (Narcotic name: ), No □

9) Are OR were you HIV (AIDS) positive?

Yes □, No □

'So for E-2 visa holders who have taken AIDS tests, and repeat AIDS tests � some 80,000 of them over the past four years � the immigration office says (in this case at least) they were just asking for them, not requiring them.

'I discussed this so-called "self-health check" in Feb. 2009 and mentioned how it disingenuously tried to pass off the tests as voluntary measures, pointing out "it appears to be a 'self-check' until you get to the bottom of the page," which reads:

"You MUST make Alien Registration at you District Immigration Office (OR Branch Office) within 90 days after your arrival in Korea. And when you register. You MUST submit your Health Certificate from the hospital which has been designated by the Korean government."

'While examining the questionnaire, the Court, for whatever reason, does not take this binding language ("You MUST submit...") into consideration. And perhaps, according to the Court's opinion, this statement should be interpreted as a mere request since the Court's opinion indicates that it's not clear whether the government would take any action if an E-2 holder refused to comply with a hospital exam and just submitted a self-declaration.

'Nevertheless, before anyone makes the decision to refuse the hospital tests they should be aware that (in 2009 at least) the immigration office has said the following:

※ "Recruitment health exam" MUST include TBPE test (tests for drug abuse) and HIV test (tests for AIDS) results . . .

※Those that list history of drug usage, AIDS, or other disease the law defines as serious contagious disease in their self health verification are not allowed to be issued a visa issuance certificate

※Those that are found to have drug intake, AIDS or other disease the law defines as serious contagious disease in their health examination will have their stay cancelled and be deported.�

'(This dire warning, to my knowledge, is no longer posted on the immigration�s website. I mentioned this in the NHRCK report (p. 8, FN 27) and there�s copy of it here.)

'In 2010 the immigration office stated that persons with HIV will not be rejected for E-2 visas, will not have visa status canceled and "will not be forced to leave Korea." If this is indeed the case then a self-declaration should suffice.

'Yet, keep in mind that Andrea Vandom, who made it known that she was not HIV positive, was threatened with deportation by the immigration authorities on numerous occasions for refusing to provide hospital test results � including this threat in the press:

"After the incident, the immigration office said the approval was a mistake by an official and that it would ask her to submit the necessary documents. The office added that it would deport her if she didn't heed the request."

'The Court did not take these deportation threats into consideration, however, and focused on the so-called "self health check" document. [. . .]

'In January 2010 the ROK announced to the world that it was abandoning HIV restrictions on foreigners and was congratulated for it by the UN [link]. In March of the same year, before the Human Rights Council, the ROK said that �early this year as part of the effort to eliminate all forms of discrimination� the ROK had revised restrictions on �foreigners living with HIV in compliance with UN recommendations.�

'This case should be seen as progress toward confirmation that HIV tests for foreigners on E-2 visas are voluntary. The Korean immigration office should make it clear that those who intend on treating them as such will suffer no adverse consequences.' "

[mandrews1985]

I'm slightly confused by this. Does it mean that people who test positive for HIV/AIDs on the medical test still pass the medical test to stay in the country?

EDIT: or is this just for those who had the blood tests and passed before they got their ARC and are extending for a 2nd year (thus needing a new medical?)

[Allthechildrenareinsane]

[mandrews1985]

Ok, yeah I guess that does sum it up, but it doesnt effect us who've already had the test, passed the medical and got our ARC? Do you need to get the medical check each year you stay in Korea?

Basically my understanding is that if we want to kick up a fuss over the blood tests, we wont get deported for it. Though my thoughts on this are along the lines of 'what are you trying to hide?'

What does this mean to teachers who take the test 'voluntarily' and fail it due to HIV/AIDs? Are they still deported?

If you tick No to HIV/aids on the self health assessment sheet and after the tests it shows that you had lied would they still 'pass' the medical and get an ARC?

I'm pretty sure if you tick 'yes' to having HIV/AIDs on the self assessment sheet, you'd not get in the door far enough to get the medical here.

[Allthechildrenareinsane]

mandrews1985 wrote:

Ok, yeah I guess that does sum it up, but it doesnt effect us who've already had the test, passed the medical and got our ARC? Do you need to get the medical check each year you stay in Korea? Basically my understanding is that if we want to kick up a fuss over the blood tests, we wont get deported for it. Though my thoughts on this are along the lines of 'what are you trying to hide?' What does this mean to teachers who take the test 'voluntarily' and fail it due to HIV/AIDs? Are they still deported? If you tick No to HIV/aids on the self health assessment sheet and after the tests it shows that you had lied would they still 'pass' the medical and get an ARC? I'm pretty sure if you tick 'yes' to having HIV/AIDs on the self assessment sheet, you'd not get in the door far enough to get the medical here.

I don't think people are trying to "hide" anything, per se, it's simply that it's none of the government's business what a person's HIV status is (according to international human rights law, anyway).

I can understand wanting to know if a visa applicant has a readily communicable, airborne disease like TB, but HIV is not an airborne virus and is transmitted primarily through sexual intercourse. A teacher who is HIV+ doesn't pose a health risk to their students b/c, obviously, they're not having sex w/ students (unfortunately, there are always a few individuals who are exceptions to this, but those people have no business teaching to begin w/).

Those are all great, relevant questions you posed above. I can't claim expert knowledge here, but my guess is that, if you consent to the test and the results come back HIV+ or if you self-identify as HIV+ on the health form, then your visa will be revoked by Kimmi or you won't be issued one to begin w/.

This article has some more relevant info on the issue:

http://news.change.org/stories/hiv-positive-south-korea-will-happily-deport-you

[mandrews1985]

Cheers for the information, of course I understand why people wouldnt want the government to know, and it's not as simple as 'what are you trying to hide?'

Although I can see why Kimmi would want to know if people are HIV+, I don't suspect it's based on us teachers passing the disease onto the students but more a long the lines of passing it on to other people in general.

Anyway, thanks for bringing this topic to light, the articles were very interesting!

[Ribena]

[mandrews1985]

Yeah, thats another good point, I presume it's a costly illness where you need a lot of treatment and time off.