AI Index: ASA 25/007/2006

 1: Introduction

---

“I want to go home, but the company is not paying me. I went to the employment security centre, but they did not solve my problem. Migrant workers are also human beings. Why don’t they pay for my work? I cannot go home because I don’t have money. I have chosen to kill myself as there is no other way.”
Note left by Jeong, a 34 year-old Chinese worker.

Jeong was working 12 and 13-hour night shifts in an embroidery factory. When her contract came up for renewal she went to the government-run employment security centre(1) to explain her situation, but to no avail. Her employer refused to allow her to move to another workplace and threatened to sack her. The employer claimed that withholding pay for less than three months was not a sufficient reason to ask to change workplaces. She chose to quit the job and after visiting the employment security centre for one last time April 2004 she threw herself under a subway train.

---

At least 360,000 migrant workers were believed to be working in the Republic of Korea (South Korea) by June 2006, some 1.5 per cent of the total workforce. Of this total, there were at least 189,000 “irregular” migrant workers (see footnote 9) and at least 115,000 “documented” migrant workers.(2)

A migrant worker is “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national”

International Convention on the Protection of All Migrant Workers and Members of their Families (Migrant Workers’ Convention), Article 2.1(3)

In August 2003 the Korean National Assembly passed the Act Concerning the Employment Permit for Migrant Workers (EPS Act). The Act prohibits discrimination against foreign workers and was intended to give migrant workers legal status and to put an end to human rights violations against them. By passing the Act, South Korea became the first labour importing country in Asia to attempt to protect the rights of migrant workers through legislation.(4)

However, two years after the Act came into effect, Amnesty International is concerned that migrant workers remain at risk of a range of human rights violations. Despite the recognition of their rights contained in the EPS Act, in reality migrants continue to have little protection and very limited possibilities for obtaining redress for abuses. In this introduction, we will enumerate Amnesty International’s concerns which will highlight this vulnerability faced by the migrant workers in South Korea; the report will discuss these concerns in greater detail in subsequent sections. Later in the introduction, we will also list the range of international treaties protecting the rights of migrant workers. The South Korean government is a State Party to most of these treaties and by enacting the EPS Act, it has undertaken an important step to protect the basic rights of migrant workers in South Korea. The South Korean government now has the obligation to ensure that the EPS system - both in its content and practice - does not violate international human rights law and standards.

1.1: Migrant workers: issues and concerns

Testimonies gathered by Amnesty International from migrant workers, counselling centres and experts in the field, show that migrant workers continue to have their wages withheld and to work excessively long hours for lower wages than Korean workers in similar jobs.

Migrant workers continue to be denied the right to organize in legal trade unions,(5) and to experience high levels of verbal and physical abuse in the workplace. Their work is often dangerous and there are many reports of serious industrial accidents(6) where injured migrant workers have received inadequate treatment and little or no compensation. (7)

A third of all migrant workers in South Korea are women.(8) Amnesty International’s research has shown that women migrant workers face discrimination in levels of pay compared to men migrant workers, and that they are also at risk of sexual harassment in the work place. A range of human rights violations suffered by women migrant workers in South Korea reveal apparent breaches of a number of international human rights treaties to which South Korea is a State Party including the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Many migrant workers accumulate huge debts in order to pay high recruitment fees for jobs in South Korea. However, once in Korea, many find that the jobs are very different from those they were promised and are more dangerous or more poorly paid than they had ever expected. With few rights to negotiate a change of job, many end up giving up their legal employment and going to work as “undocumented” or “irregular” migrant workers(9) elsewhere in the country. Most feel compelled to try to earn enough money to pay their debts and support their families back in their home countries.

Amnesty International’s research has shown that under the EPS system, migrant workers, in practice, have very limited scope for changing their workplace. This can seriously hamper their ability to lodge complaints about abuses because they fear antagonizing their employers or because they fear losing their jobs and thereby losing their legal status to work in South Korea. There are also reports that employers have seized official documents, including passports and work permits, preventing migrant workers from looking for jobs elsewhere.

The EPS system calls for the return - voluntary or forced - of irregular migrant workers. This has resulted in the arrest, detention and deportation of thousands of workers since November 2003. The collective nature of the arrest and deportation operations make it very difficult for the government to provide the necessary procedural guarantees, including individual assessment,(10) and so ascertain whether people legally entitled to remain in the country may be among those expelled. This is in violation of procedural guarantees against forced return provided for in the International Convention on Civil and Political Rights (ICCPR), Article 13.(11)

Amnesty International has also received reports of excessive use of force by police and immigration officials during arrest and very poor conditions of detention pending deportation.

Many migrant workers, who have been forcibly returned to their home countries, did not receive the wages due to them, leaving them destitute.

In the wake of the operations to arrest and deport irregular migrant workers since November 2003, there has been an increase in people claiming asylum. Amnesty International continues to be concerned at continuing reports that the existing refugee recognition system is at times unfair, arbitrary and lacks transparency.(12)

1.2: Migrant workers’ rights

---

“I heard a shout from my boss insulting/forcing me with verbal abuses to hurry so I was scared and I lost concentration so I was pulled by the machine. When the machine was switched off, I realized my fingers had been chopped off; so I was rushed to the hospital and that was the last time I saw my employer.”My treatment at the hospital was very poor(13) and it was this poor treatment of my hand that led to a decay of the hand and it was amputated. The company did not do anything about my expenses and my employer was nowhere to be found. I had a one-year visa before the accident; but my employer kept my passport because he did not want the insurance company to compensate me. The Korea Labor Welfare Corporation(14) was responsible for my proper medical treatment and compensation; the Korean government also refused to grant me and my family residence. I was not fully treated before I was harshly discharged on 6 May 2003, and my hand was still very painful. I have been walking on the street for sometime now without treatment, living on charity in Korea, with a wife and two sons aged 13 and 10 in Ghana. Due to this, there is no education for my kids; this also makes my situation even worse and the psychological implications are equally disturbing."

Testimony to Amnesty International from James Mensah, a migrant worker from Ghana who was injured in October 1998, dated 3 May 2006.

---

The South Korean government has an obligation to ensure that the EPS system is compatible with international human rights law and standards. All migrant workers, regardless of their legal status, have rights under international human rights and labour rights law. The range of international treaties protecting the rights of migrant workers enshrine and include the indivisibility of civil and political and economic, social and cultural rights:

– the International Convention on the Elimination of All Forms of Racial Discrimination (CERD);
– the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);
– the International Covenant on Civil and Political Rights (ICCPR);
– the International Convention on Economic, Social and Cultural Rights (ICESCR);
– the Convention on the Rights of the Child (CRC);
– the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers’ Convention);(15)
– Conventions of the International Labour Organization (ILO).

These international treaties guarantee migrant workers the rights to:

– Life;(16)
– freedom from torture, and other cruel, inhuman or degrading treatment or punishment;(17)
– freedom from slavery and servitude;(18)
– freedom from imprisonment for inability to fulfil a contractual obligation;(19)
– recognition as a person before the law;(20)
– freedom of thought, conscience and religion;(21)
– best attainable standard of physical and mental health;(22)
– education;(23)
– adequate housing;(24)
– adequate food and water;(25)
– work and rights at work(26).

The South Korean government has, by enacting the EPS Act, begun a significant attempt to protect the basic rights of migrant workers in South Korea. However, the implementation of the Act reveals that migrant workers remain a vulnerable community. This report examines how, despite the enactment of the EPS Act, the system for dealing with migration in South Korea has evolved in a manner that disadvantages migrant workers. It also describes human rights violations against migrant workers including discrimination and abuses in the workplace and during arrest, detention and deportation. The report ends with a series of recommendations to the South Korean government and other concerned stakeholders to address these violations and protect the rights of migrant workers.

 2: International Standards

South Korea has ratified a range of key international human rights and labour treaties which provide that the rights of all migrant workers, regardless of their legal status, should be promoted and respected. However it has yet to sign the International Convention on the Protection of the Rights off All Migrant Workers and Members of Their Families members.

South Korea acceded to the ICCPR and the ICESCR in April 1990; the CERD in December 1978; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) in January 1995 the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in December 1984; and the Convention on the Rights of the Child (CRC) in November 1991.

The South Korean government should also ensure that all migrant workers benefit from the principles and rights in the 1998 ILO Declaration on Fundamental Principles and Rights at Work and its follow-up, which are reflected in the eight fundamental conventions which the ILO has identified as core standards of labour protection.(27) It is a State Party to the following ILO Conventions.

Of the eight fundamental ILO conventions identified as core standards of labour protection, South Korea has ratified: