The author of the communication is Gentilmen Issa Magumba, a national of the Democratic Republic of Congo (DRC), born on 10 August 1974. He claims that his rights under articles 6 (1), 7, 9 (1) and 10 (1) of the Covenant were violated. The Optional Protocol entered into force for the State Party on 10 July 1990. The author is represented by counsel.
On 26 May 2020, the Committee, acting through its Special Rapporteurs on new communications and interim measures, decided to grant interim measures and requested the State Party to refrain from deporting the author to the DRC while his communication was being considered.
On 7 September 2020, the State Party requested that the admissibility of the communication be examined separately from the merits. On 11 March 2021, the Committee, acting through its Special Rapporteurs on new communications and interim measures, decided to examine the admissibility of the communication together with its merits and to maintain interim measures. It also requested that the author be removed from the transit zone of the airport, where he was held, and provided with basic accommodation and with access to adequate food and nutrition and appropriate medical care.
Factual background
The author was a businessman in the DRC. In 2015, the author sent two male co-workers, Abou and Kataweza, to help a business partner. Thereafter, the author learned that Abou and Kataweza were forced to join the Alliance of Democratic Forces – National Army for the Liberation of Uganda (ADF-NALU), a Ugandan-led armed rebel group active in the east of the DRC. Two years later, the author himself was kidnapped and forced to join the ADF-NALU and undergo military training in the forest of Beni. During the training, the author witnessed killings of other people by members of the ADF-NALU under the influence of drugs. He was also forced to dig minerals such as coltan, uranium and tourmaline. The author considered the rebel group as a criminal movement and was able to flee after six months when the ADF-NALU fought against the government.
When the author returned to his hometown, no one knew that he had been kidnapped by the ADF-NALU. However, since his co-worker Kataweza got killed, Kataweza’s family accused him of being a member of the ADF-NALU, burnt his house and killed his twin brother. The author could not report those incidents to the police out of fear that he would be persecuted for joining the ADF-NALU. The author’s five children and one nephew had to run away out of fear of the police and people accusing him of being a member of a rebel group. The author lost contact with his children and nephew and does not know their whereabouts.
The author hid in Virunga National Park for four months. He then managed to leave the DRC with the help of a friend in Indonesia. The author crossed to Rwanda and fled through the Kigali airport for Indonesia. As he suspected that the intelligence agency of the DRC sent its agents to arrest him in Indonesia, he fled to Vietnam and contacted the UNHCR in Hanoi. However, the author was advised to travel to Bangkok for assistance. He instead decided to leave for Palau.
On 15 February 2020, while on his way to Palau, the author arrived at the Incheon International Airport in Seoul by Asiana Airline as a transit passenger. He fell asleep and when he woke up, he realized he no longer had his passport and felt he had no more energy to travel further. The author approached the immigration officer at the entry inspection and declared that he wanted to apply for refugee status in the State Party (at 22:48). He was briefly interviewed about the reasons for seeking asylum. The immigration officer took written note of the author’s statement and scanned his identification document.3 The immigration officer also informed him that he was not eligible to apply for refugee status in the State Party as he was a passenger in transit and he did not go through immigration control to enter the country. The author was transferred to an employee from Asiana Airline and was escorted to the transit area of the airport terminal 1. The author has been held in the transit area since. He added that the employees of Asiana Airline tried to force him to exit the transit area and leave the State Party, also with the help of a Congolese diplomat.4
After the refusal to have his refugee application registered, on 3 March 2020, the author was able to email the UNHCR office in the Republic of Korea to seek assistance. The UNHCR contacted Korean lawyers, who on 31 March 2020, filed a request to cancel the refusal of the author’s application for refugee status at the airport with the Incheon District Court. The case was pending at the Incheon District Court at the time of submission of the communication.5
- The pending court case is to request the State Party’s immigration to accept the refugee application, which would require further legal proceedings after the decision is made. If the author’s case were allowed, he would be able to submit the refugee application and the State Party will conduct the initial assessment of the case. ↩
The author primarily claims that the refusal of his refugee application at the border amounts to de facto refoulement, without review of the risk of irreparable harm. Since there has been no precedent of an individual in a similar situation to that of the author, who would have his complaint admitted to the court, despite being outside the State Party’s jurisdiction, the author fears that the State Party can remove him anytime from the transit area. Given the absence of legal grounds to prevent the execution of the author’s removal from the State Party, the risk of his refoulment is imminent, even if the present case is pending at the Incheon District Court.
He notes that the State Party has detained the asylum seekers who had their refugee application rejected at the port of entry in the ‘deportation waiting room’. He notes that in his case, the State Party has not issued the non-referral decision or repatriation order as he was not even given the opportunity to apply for refugee status at the port of entry and was left in the transit area without assistance or clear timeline for a possible solution. He added that there is no law or policy to review the legality of detention in the transit area.
On 13 July 2020, after he submitted the communication to the Committee, the author filed an application for habeas corpus review to the Incheon District Court, arguing that his stay in the transit area constitutes an “illegally initiated detention” under the Habeas Corpus Act. On 13 April 2021, the author entered the Republic of Korea because of successful administrative litigation and has been staying in its territory on the visa for refugee applicants while the Refugee Status Determination (RSD) proceedings were pending.
However, at the time of submission, the author claimed that he had exhausted available domestic remedies, arguing that since the administrative asylum procedure, and related administrative court proceedings, are unreasonably prolonged, there is no need to exhaust such remedy.6 He also refers to Committee’s jurisprudence and states that he does not need to exhaust the remedies that are unlikely to succeed.7 The same matter has not been submitted to another procedure of international investigation or settlement.
Complaint
The author claims that the State Party’s refusal to accept his refugee application on 15 February 2020 at the Incheon International Airport, without a review of the risk of irreparable harm, constitutes a violation of his rights under articles 6 and 7 of the Covenant, if he were to be removed.8 Such refusal would lead to his de facto refoulement, in violation of article 7 of the Covenant, to the DRC where he has been accused of being a member and a recruiter of a rebel group, and under threats of the authorities and the family of his co-worker Kataweza. He claims to have established he faced a real risk of irreparable harm.9
Under Korean law, refugee application can be made at the port of entry. When a foreigner makes refugee application at the port of entry, the application is subject to the assessment of the admissibility of the case instead of the full examination of the substantive claim. In order to ensure the non-refoulement of asylum seekers, the State Party should have a due procedure to review a risk of irreparable harm under articles 6 and 7 of the Covenant regardless of the place of application. The only ground for the State Party to refuse the refugee application of the author was that he was not a foreigner ‘undergoing an entry inspection’ but a mere transit passenger. The State Party interpreted article 6 of the Refugee Act literally that only a foreigner ‘undergoing an entry inspection’ is entitled to apply for refugee status at the port of entry.
The author argued that confinement to a restricted area of an airport including the transit area amounts to deprivation of liberty under article 9 of the Covenant.10 The author thus contends that by detaining him in the transit zone of the Incheon International Airport without legal ground, since no administrative order has been issued; for indefinite period and without a possibility of reviewing the legality of his detention in the transit area, his rights under article 9(1) of the Covenant have been violated.
- Committee’s general comment no. 35 (CCPR/C/GC/35), para. 5, in which a reference is made to the concluding observations on Belgium (CCPR/CO/81/BEL, 2004), para. 17 (detention of migrants pending expulsion). See also the UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (1999). ↩
The author adds that he is not in the transit area voluntarily since he has no choice of leaving the State party11 as he would be subject to torture or other ill-treatment in the DRC. Furthermore, as the Covid-19 pandemic persists, more countries enforce entry ban on individuals who have stayed in the State Party; the author cannot travel to other countries. He has been held in the transit area since 15 February 2020. He added that no independent review mechanisms exist to determine the legality of the prolonged detention, asserting that a release request according to the Protection of Personal Liberty Act12 is not likely to succeed as no precedent decision was rendered to serve those detained in the transit area in the airport.
Furthermore, the author claims to have been held in inhumane conditions and facing inhumane treatment in the transit area, as he has no privacy, limited access to medical services and is forced to live under constant lighting. In addition, he was held without any protection measures amid the COVID-19 pandemic, which amounts to life threatening situation due to a higher risk of Covid-19 infection. Therefore, the State Party violated the author’s rights under articles 6 (1), 7 and 10 (1) of the Covenant.
State Party’s observations on admissibility
On 7 September 2020, the State Party objected to the admissibility of the communication, requesting that the admissibility be examined separately from the merits. First, the State Party asserted as to the factual background that the author had expressed his intent of seeking asylum only on 18 February 2020 to an airport security guard. On 31 March 2020, the author filed a case requesting the Incheon District Court to cancel the State Party’s refusal of his refugee application. The Incheon District Court in its ruling of 4 June 2020 stated that there is no sufficient ground or evidence to recognize that the author expressed an intent to apply for refugee status at the immigration desk in the airport or that the State Party refused receipt of such application. However, the Court ruled in favour of the author, citing the Refugee Act (art. 5 (4)) which stipulates that “an immigration control official shall positively help foreigners who inquire about applying for refugee status or express their will to apply therefor.” The State Party appealed and the case was pending before the Seoul High Court. After submitting the complaint to the Committee, on 13 July 2020, the author filed an application for habeas corpus review to the Incheon District Court, arguing that his stay at the transit area constituted an “illegally initiated detention” under the Habeas Corpus Act. This case was under review in the Incheon District Court at the time. The State Party argued that the author failed to exhaust available domestic remedies since the proceedings concerning his asylum request were pending before the Seoul High Court, and in the Incheon District Court as concerned his habeas corpus application. The State Party also considered the author’s claims as not substantiated, arguing that there was no unjustifiable or unreasonable delay in the length of judicial proceedings.
Subsequently, the State Party attested that the author continued to be kept in the transit area of the airport, where he could use various facilities including medical treatment. His habeas corpus application was dismissed by the Incheon District Court on 19 November 2020. The court stated that the author was not a detainee but had been staying in the transit area as he was not allowed to enter the State Party. The author appealed the decision, and the case was pending at the Incheon High Court at the time.
Author’s comments on admissibility
On 14 December 2020, the author submitted his comments on the State Party’s observations on admissibility, objecting to the allegations of non-exhaustion of domestic remedies as the relevant procedures were unreasonably prolonged and unlikely to succeed. He corrected some inconsistencies in his accounts of facts due to his physical and mental strains, arguing that the State Party failed to provide him with adequate means of subsistence by keeping him in the transit zone. He lived on cash donated by the counsels’ acquaintances to buy food, and on food occasionally given by the passengers in the transit area. Despite indication that lounges, showers and free internet kiosks are available in the transit area, the author noted that the shower facility was closed after the breakout of COVID-19 and that he was allowed to use the facility only once a week. As regards the author’s detention in the transit area, the Incheon District Court dismissed his habeas corpus application on 19 November 2020 as it did not consider the author a detainee. The author appealed the decision, and the case was pending at the Incheon High Court. In view of the author, it was not clear how long the judicial procedure would last, and whether he would be allowed to leave the transit area unless he would win the litigation to cancel the rejection of the non-referral decision on his refugee application.
The author’s health conditions further deteriorated and, although he was sent to the hospital at the Incheon International Airport, he received painkillers without proper examination and diagnosis. By failing to provide him with access to food, decent accommodation and proper medical treatment, the State Party has violated his right to life.
As for the author’s eligibility to apply for refugee status, the Incheon District Court in its ruling of 4 June 2020 found that the author clearly expressed his intent to apply for refugee status since 18 February 2020. The author reiterated that the State Party was thus obliged to take measures under article 6 of the Refugee Act, such as assisting the author to write and submit the refugee application form and pursue the refugee status determination (RSD) procedure. The court concluded that the State Party’s omission to assist the author has amounted to a violation of article 6 of the Refugee Act. The State Party appealed against the court’s ruling, insisting that the author was not entitled to apply for refugee status since he was a mere transit passenger.
State Party’s observations on admissibility and the merits
In its 6 July 2022 submission, the State Party argued that the communication should be considered inadmissible, or without merit.
On the admissibility, the State Party recalled that the author has not exhausted all available domestic remedies. Moreover, the application of domestic remedies was not unreasonably delayed or ineffective. The State Party noted that while in the transit area, the author filed on 31 March 2020 a request to the Incheon District Court “to cancel the Government’s refusal of his refugee application and recognize that the non-initiation of the RSD procedure at the port of entry was unlawful”.
The author entered the Republic of Korea because of successful administrative litigation, and he has been staying in its territory on the visa for refugee applicants while the RSD proceedings were pending. The rights of the author were therefore upheld by the domestic judicial procedures.
As to the merits, the State Party opposed as unreasonable the author’s arguments that the rejection of his application for refugee status at the border by its immigration authorities constituted a forced expulsion or de facto refoulement of the author, in violation of articles 6 (1) and 7 of the Covenant. The State Party also noted that there is no possibility that the author would be repatriated against his will during the RSD procedure, pursuant to article 62 (4) of the Immigration Act.
Regarding article 9 claims, the State Party held that the author was not deprived of his liberty upon arrival at the Incheon International Airport on 15 February 2020 as he could secure a seat on a departing flight of Asiana Airline to Palau. Although the author could have freely left the transit area at any time, he decided to remain there due to his will to enter the State Party. There was hence no act of “arbitrary arrest or detention” or “deprivation of liberty” and the State Party complied with its obligations under article 9 (1) of the Covenant. Finally, the State Party asserted that the author was provided, when in transit, with emergency medical services and was granted access to legal counsel, in accordance with article 10 (1) of the Covenant.
Author’s comments on the State Party’s observations on admissibility and the merits
On 7 November 2022, the author submitted his comments on the State Party’s observations of 6 July 2022.
The author noted that he was released from the transit area on 13 April 2021, pursuant to the order by the Incheon District Court, as confirmed by the Incheon High Court. On 24 May 2021, the State Party accepted the author’s application for refugee status, following the decision from the Seoul High Court of 21 April 2021, which found that the decision of the immigration authorities not to accept the application for refugee status from the author was unlawful. As of November 2022, there has been no progress in the RSD procedure in the author’s case. He continued to live in the State Party on a temporary visa. The author has been struggling to survive as his work-contracts have constantly been terminated due to his health condition,13 having to rely on charity activities since without regular income or social support.
- The author has generally referred to the chronic pains in the lower parts of his body, which prevented him from working efficiently. ↩
Regarding the detention of the author in the transit area, the State Party should have released him as soon as possible; and at least after the 4 June 2020 Incheon District Court finding that the authorities’ refusal to accept the author’s application for refugee status was unlawful. The author was released from the airport transit area only after the interim measures request to release him, issued by the Incheon High Court on 13 April 2021. Such delay in remedial procedure has not been justified and should be considered unreasonable. As concerns the implications for the right to life, the author faced life threatening difficulties during his stay in the airport transit zone for 14 months, without a remedy. While he could have sought compensation from the State Party, he was afraid of the possible repercussions for doing so during the RSD procedure. He therefore considered the compensation claim not to be an available remedy.
In addition, the author considered the State Party’s objections to his claims under articles 6 (1) and 7 (para. 3.2 above) as misleading; however, he admitted that the State Party has exercised discretion over the RSD procedure and the right to regulate entry and stay of the aliens. In this case, the State Party did not allow the author to apply for refugee status just because he was a transit passenger. Without specific legal provisions to ensure an effective and independent review of the decisions over the application for refugee status at the border, the rejected asylum seekers are deprived of the right of non-refoulement, in violation of the Covenant.14
- Alzery v. Sweden (CCPR/C/88/D/1416/2005), para. 11.8. ↩
As regards the objections to the alleged violations of article 9 (1), the author considers that the State Party’s arguments are based on the legal fiction that the asylum seeker can freely leave the transit zone and the State Party and go to any other country. The author refers to the Committee’s case-law that any decision to keep a person in detention should be subject to a period review so that the grounds justifying detention can be assessed; the detention should not continue beyond the period for which the State can provide appropriate justification. The author submits that while there was not an affirmative decision to detain him in a specific place, it was the administrative power of the State Party that deprived the author of liberty by not allowing him to leave the transit area during the judicial proceedings from February 2020 to April 2021. Without legislative measures prohibiting detention in the transit area of the asylum seekers rejected at the border, the State Party continues to practice de facto arbitrary detention of the rejected asylum seekers, thereby violating article 9 (1) of the Covenant.
As for the claims of violations of articles 6 (1), 7 and 10 (1), the author notes that the State Party held that since the author was not formally detained, it had no obligations towards him in the transit area, which was equipped with appropriate facilities. The author objected, noting that he was destitute and could not afford the high prices of goods and services in the transit area. He also objected to the way in which the State Party qualified the fact that he was provided a separate room for interview with the legal counsels on eight occasions within 14 months as “humanitarian”. He contends that asylum seekers are entitled to the right to counsel and the provision of room for meetings with the counsels is a legal requirement, not a humanitarian gesture. The Covenant requires from the State Party a heightened duty of care to take necessary measures to protect the lives of individuals deprived of their liberty by the State.15 However, the State Party failed to take any measures to protect the author from the Covid-19 pandemic. The author reiterated that his life in the transit area was sustained by donated goods, including the food, face masks, soap and medicines. The author also had difficulty to keep hygiene as the shower facility was closed during the Covid-19 pandemic, and he lacked access to medical services. Without adequate measures to sustain the author’s life in the transit area, the State Party violated its obligations under articles 6 (1), 7 and 10 (1) of the Covenant, breaching the duty of care towards the author.
- General comment no. 36 (CCPR/C/GC/36), para. 25. ↩
The author recalls that he forcibly left his home in 2017 after having been kidnapped and he had no safe place to return to and that he was left without legal protection or remedies for over 33 months.
State Party’s further observations
On 1 February 2023, the State Party submitted that although the RSD procedure in the author’s case was still pending, it nevertheless represents an available domestic remedy that has neither been unreasonably prolonged nor ineffective. However, the State Party recognized its comparatively low refugee recognition rates, and in acknowledging the criticism regarding the time-consuming nature of the RSD procedures, it has taken various measures to address the issue, including by increasing the number of RSD officers and improving the procedural fairness of RSD interviews.
As for the author’s extended stay in the airport transit area, the State Party objected to the author’s allegations of undue delays, recalling that he exited the transit area on 13 April 2021 and entered the State Party’s territory, after a successful administrative litigation before the court. If the author suffered damages due to the Government’s actions causing alleged infringements of his right to life, he could seek a judicial remedy e.g. by filing a claim for compensation.
The State Party contends that, notwithstanding the author’s pending refugee application since 24 May 2021, and except for compensation claim, all other remedies sought initially by the author have either been satisfied through domestic procedures or have become moot. Since the author has not attempted to exhaust the compensation claim, his communication should be declared inadmissible.
The State Party also submitted observations on the author’s comments on the merits, informing about the policy reform of the applications for refugee status in the transit areas, outlining the Seoul High Court’s interpretation of the Refugee Act so that airport transit passengers may also apply for refugee status.16 The Government revised the Refugee Policy Manual so that if an airport transit passenger expresses their intention to enter the Republic of Korea and apply for refugee status, they should be transferred to relevant public officials for further processing “without delay”. The State Party also mentioned the improvements in the airport waiting areas for foreigners denied entry.
- On 21 April 2021, the Seoul High Court held (decision 2020Nu45348) that foreigners who enter the transit areas, which is under the jurisdiction of the Republic of Korea, have a right to seek asylum according to article 6 of the Refugee Act. ↩
Author’s additional comments
On 8 June 2023, the author submitted additional comments indicating that his refugee application has been pending at the first stage for over 39 months since he arrived in the State Party to seek protection and he was not interviewed by the RSD officers as of June 2023. The author could not work due to his health status, and he was not entitled as a refugee seeker to any social security services. He was left destitute without any protection from the State Party.
The author reiterated his arguments about the lack of effectiveness of the pending RSD procedure, which even once concluded would not have addressed neither compensation in relation to his detention in the airport transit area nor the merits of his claims, including the alleged violations of the right to life. He informed that he filed the compensation claim on 24 April 2023 due to his detention in the transit area.
The author also noted the State Party’s efforts to improve the conditions in the airport transit area to prevent similar cases, pursuant to the High Court’s decision of 21 April 2021, and allowing the transit passengers in the airport to seek asylum and by processing their application without delay.
State Party’s additional observations
On 17 November 2023, the State Party submitted additional observations on admissibility and the merits, reiterating its argument of the lack of exhaustion of domestic remedies.
While the author pursued the Refugee Status Determination (RSD) procedure, there is no evidence that it has been unreasonably prolonged or ineffective. The author also filed a compensation claim against the State on 24 April 2023. The domestic remedies have proven effective and timely, and the communication should be considered inadmissible.
As for the alleged unreasonable delays in recognizing the author as a refugee, in June 2023, the authorities summoned the author on two occasions, but he did not attend the scheduled appointments without notice and could not be reached. On 3 August, the authorities conducted the interview. On 29 August 2023, the author’s application for refugee status was rejected, and he did not qualify for humanitarian status either. On the same day, the author appealed the negative decision to the Minister of Justice. The appeal procedure was ongoing as of October 2023. His appeal to the Minister proves that the available domestic remedies have not been exhausted. Therefore, the author’s criticism that the RSD procedure has been unreasonably delayed is unfounded.
As for the criticism that the RSD procedure is ineffective due to the low refugee recognition rate, the data shows that the RSD procedure is effective, and the appeals are guaranteed.
The State Party rejected again that it had arbitrarily detained the author as a foreign national in the airport transit area. Its Refugee Act operates two distinct refugee application systems: a (general) RSD system for foreigners residing in the country and a port-of-entry RSD system for those arriving, in line with the Convention Relating to the Status of Refugees (1951). When a foreign national arriving at a port of entry seeks a refugee status but is denied protection, the individual has the option to return to their home country, go to a third country, or stay at the port of entry and challenge the decision through judicial procedures. If the authorities reject an application for refugee status, an individual is denied entry and not permitted to leave the airport. Even if he/she opposes a repatriation to a foreign country, there are no restrictions on personal liberty. An individual can freely navigate the departure and transit areas of the airport and determine the duration of stay at the airport based on their own preferences.
The Incheon International Airport Terminal covers a large area requiring a 50-minute walk, and individuals are no longer confined to a limited space like the departure waiting area inside the terminal, enjoying the freedom to move around. The author’s claim that the current departure waiting area is a facility where he can be involuntarily detained indefinitely is not accurate.
The State Party also objected to the alleged infringement of the author’s right to life, due to the cited absence of remedies and unreasonable prolongation of the RSD procedure, leading to deprivation of his livelihood. It noted that article 40 of the Refugee Act allows a refugee applicant to apply for a living allowance. The author has never submitted such an application and has never applied for a work permit either. Moreover, the author applied for medical expenses once in March 2023, which was denied as the amount requested was too small for a required threshold. Prior to that, the author received medical treatment on 7 July 2020 during his stay in the airport transit area, and the medical record stated that the urgency was not proven. The State Party held that the author’s claim that the Government’s failure to provide social assistance has rendered him destitute, constituting an infringement of his right to life, has not been substantiated. The State Party concluded that there was no violation of articles 6 (1), 7, 9 (1) and 10 (1) of the Covenant.
As regards the allegations of poor conditions in the departure waiting area at the airport, the State Party objected that such claims go beyond the scope of the Committee’s examination and are factually untrue. However, the Government has made improvement plans in anticipation of similar cases in the future. It opposed the cited difficulties in obtaining food in the airport transit area due to financial constraints, including having to rely on food provided by passing passengers. Since August 2022, when the management of the departure waiting areas shifted to the government, meals have been provided from public budget. As regards the quality, the State Party added that breakfast is served as a snack, and lunch and dinner are provided the same as in-flight meals on international flights. The claims of poor quality should be deemed inappropriate.
As to the claims that “medical services are largely unavailable” in the departure waiting area, the State Party submitted that basic medicines are available on-site, and in 2022, Incheon International Airport paramedics addressed 23 cases of minor illnesses, and 12 cases received outpatient treatment outside the airport.
As regards the criticism of the draft law establishing the departure waiting centre, outside ports of entry, the author held that the operation of such a centre may lead to indefinite detention of applicants for refugee status. The State Party noted that the draft law, which was presented to the National Assembly of the Republic of Korea on 15 December 2022 and was pending at the time, cannot be considered as allowing arbitrary detention as its aim is to bring improvements in living conditions and rights for those who stay in the airport for a longer period, including the cited concerns regarding the limitations on meals and personal items.
Author’s additional comments
On 2 June 2025, the author submitted an update on the status of the RSD procedure, noting inter alia that his refugee application was rejected by the Incheon Immigration Office on 29 August 2023 and the appeal against the negative decision was rejected by the Minister of Justice on 24 November 2023. Subsequently, the author filed an administrative lawsuit at the Incheon District Court, seeking to revoke the non-recognition of his refugee status, but the court dismissed the author’s claim on 26 July 2024. The author also filed a civil claim for compensation of damages under article 2 (1) of the State Compensation Act, arguing that public officers unlawfully restricted his liberty by leaving him stranded for 14 months in the airport transit zone, without access to asylum procedures. The Court dismissed the author’s claim for compensation on 19 June 2024.
Consideration of admissibility
Before considering any claims contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
The Committee notes the State Party’s argument that the author has not exhausted all available domestic remedies. It contends that the author’s application for revocation was pending at the time of submission of the communication to the Committee (paras. 4.1, 6.1 and 10.2. above), that his subsequent application for refugee status and the RSD procedure also remained pending (paras. 7.2 and 8.2), and that the proceedings were not unreasonably prolonged (para. 10.2). The State Party added that the Incheon District Court on 4 June 2020 and the Seoul High Court on 21 April 2021 ruled in the author’s favour, that the judicial remedies proved effective as the author exited the airport transit area on 13 April 2021 and entered the State Party’s territory (para. 8.3 above), and that the author’s claims have been resolved or become moot. The Committee further notes the State Party’s assertions that the author only submitted a claim for compensation on 24 April 2023, while his application for refugee status of 24 May 2021 was rejected on 29 August 2023, and that his appeal against the negative decision on his refugee application was pending before the Minister of Justice in October 2023 (para. 10.3 above).
The Committee further notes the author’s claim that he has exhausted available domestic remedies, while he primarily held that the remedial procedures have been unreasonably prolonged and unlikely to succeed. The author in particular argued that: (a) the rejection of the application for refugee status at the border was not subject to appeal; (b) on 31 March 2020, he filed an administrative litigation at the Incheon District Court to request the revocation of refusal of his application for refugee status at the border, which ruled in the author’s favour on 4 June 2020, finding that the author should have been entitled to submit a refugee application even as transit passenger; (c) since the Government appealed against the Incheon District Court finding, the proceedings were protracted and extended the author’s transit detention for 14 months until the Seoul High Court confirmed the author’s claims for revocation of rejection of his refugee application on 21 April 2021, after the author’s release from the airport transit area on 13 April 2021 pursuant to the Incheon High Court order; (d) on 13 July 2020, the author filed habeas corpus application, which was rejected by the Incheon District Court on 19 November 2020; and (e) the author’s application for refugee status of 24 May 2021 was rejected on 29 August 2023, his appeal against the negative decision was rejected by the Minister on 24 November 2023, and the appeal before the Incheon High Court has remained pending.
The Committee notes that the author’s main claims relate to the absence of access to refugee applications for those in transit, who have not entered the State Party’s territory; the absence of opportunity to submit an appeal against the rejection of application for refugee status at the border; the legal uncertainty about his rights, while held in the transit zone of the airport, to request a revocation by a court of rejection of his refugee application, noting also the alleged lack of judicial precedent. The Committee observes the author’s additional claim that he demonstrated due diligence by pursuing also civil remedies, but the compensation proceedings have been inefficient as his claim for compensation of 24 April 2023 was rejected on 19 June 2024 (para. 11 above).
The Committee recalls its jurisprudence that authors are obliged to exhaust all domestic remedies insofar as such remedies appear to be effective in the given case and are de facto available to the author,17 and that domestic remedies are not considered effective where their application is unreasonably prolonged.18 In addition, the Committee recalls its long-standing jurisprudence according to which, when examining complaints, the determination of the exhaustion of domestic remedies is made with reference to the time a communication is being examined.19
- E.g. Urszula Saad v. Libya (CCPR/C/143/D/3324/2019), para. 7.4. ↩
- See, e.g., Rajapakse v. Sri Lanka (CCPR/C/87/D/1250/2004), paras. 9.4-9.5; Sendic v. Uruguay (CCPR/C/14/D/63/1979), para. 17; and Del Cid Gómez v. Panama (CCPR/C/54/D/473/1991), para. 5.1. ↩
- See Luiz Inácio Lula da Silva v. Brazil (CCPR/C/134/D/2841/2016 – Final proceedings), paras. 7.4–7.5. ↩
In this case, the Committee takes note of the State Party’s argument that the author submitted a request for revocation on 31 March 2020, and that he had been gradually using the available domestic remedies following the submission of his initial communication on 1 May 2020 (para. 4.1 above). However, the Committee notes that the author made all reasonable attempts to remedy the alleged violations at the domestic level, in particular as the author was in the airport transit area in a situation of legal uncertainty as to his status and rights, and while fearing a risk of refoulement at any point, in the absence of automatic suspensive effect of the administrative court litigation. In addition, the Committee observes that the author did not have access to an appeal procedure to contest the rejection of his application for refugee status at the border, and could only file an administrative court application for revocation of the rejection of his refugee application on which the courts ruled in the author’s favour on 4 June 2020 and 21 April 2021 (see paras. 2.5-2.6 and fn. 4 above). The Committee also observes that the author’s asylum application, which was eventually accepted by the State Party on 24 May 2021, had no suspensive effect on the author’s eventual removal pending the RSD procedure. Moreover, it has not been satisfactorily resolved for over 2 years, involving delays in interviews, and the refugee application was rejected on 29 August 2023, and on appeal on 24 November 2023, and the appeal against the negative decision of the Incheon District Court of 26 July 2024 has been pending before the Incheon High Court, in the context of administrative lawsuit (para. 11. above). In parallel, the author’s civil compensation claim was denied on 19 June 2024.
In light of the above, the Committee considers that the relevant domestic remedies have been either unavailable (e.g. due to absence of appeal against the rejection of refugee application by transit passenger), unreasonably prolonged (e.g. as administrative court litigation for revocation of rejection is followed by RSD procedure) or partially effective (e.g. due to delays of RSD procedure, as admitted, and its absence of suspensive effect, in combination with low recognition rates of asylum applications, and as the habeas corpus application and compensation claim proceedings turned ineffective in this case).20 The Committee therefore concludes that it is not precluded from considering the author’s claims by the requirements of article 5 (2) (b) of the Optional Protocol.
- E.g. A.B. and B.D. v. Poland (CCPR/C/135/D/3017/2017), para. 8.3. ↩
As regards access to asylum, the Committee notes that the author’s refugee application, eventually accepted in May 2021, was considered and rejected by the national asylum authorities in 2023, and that the author did not submit information on any procedural irregularities or arbitrariness of his asylum proceedings. The Committee considers that the author’s allegations under articles 6 (1) and 7, as they were considered by the State Party at that time, that he would face a personal and real risk of irreparable harm, if removed to the DRC, in violation of his rights under the Covenant (substantive elements of the principle of non-refoulement), have not been sufficiently substantiated before the Committee as to the risks of irreparable harm, and therefore declares them inadmissible, pursuant to article 2 of the Optional Protocol. Furthermore, the Committee considers that the author’s claims under articles 6 (1) and 7, in the context of his claims under article 10 of the Covenant, have not been sufficiently substantiated as to the eventual aggravating risks for his life and dignified treatment, on account of the conditions of detention, and therefore finds them inadmissible, pursuant to article 2 of the Optional Protocol.
The Committee, however, considers that the author’s claim under article 7, concerning the impossibility for the author to submit a refugee application while he was in the airport transit area and did not go through an immigration entry inspection, and his claims under articles 9 (1) and 10 (1) have been sufficiently substantiated for the purposes of admissibility. It therefore declares those claims admissible and proceeds to their consideration on the merits.
Consideration of the merits
The Committee has considered the communication in the light of all the information made available to it by the parties, as provided for under article 5 (1) of the Optional Protocol.
As regards article 7 of the Covenant, the Committee notes the author’s claim that his application for refugee status at the port of entry of the State Party was immediately rejected and not processed, without due consideration of the risk of irreparable harm he would face if he were to be removed.21 The Committee notes the State Party’s argument that under article 6 of the Refugee Act, a foreigner can only submit a refugee application at the port of entry, not in the airport transit area. In accordance with its interpretation of article 6 of the Refugee Act, the State Party contends that only a foreigner ‘undergoing an entry inspection’ is entitled to apply for refugee status at the port of entry. The author objected, however, that the State Party’s non-refoulement obligation should not be limited to asylum seekers who are ‘undergoing an entry inspection’, but extend to every individual in the State Party’s territory. Furthermore, the Committee observes that on 31 March 2020 the author applied for revocation of the refusal for processing of his refugee application, and that the Incheon District Court and the Seoul High Court ruled in the author’s favour, on 4 June 2020 and 21 April 2021 respectively, finding that the transit passengers should also be entitled to the right to asylum, pursuant to article 6 of the Refugee Act, as the airport transit areas are under the jurisdiction of the State Party (para. 8.4). The Committee notes the subsequent draft State Party’s legislative amendments and changes of policies.
- A.B. and B.D. v. Poland, para. 9.2. ↩
The Committee recalls its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States Parties to the Covenant, in which it referred to the obligation of States Parties not to extradite, deport, expel or otherwise remove a person from their territory when there were substantial grounds for believing that there was a real risk of irreparable harm such as that contemplated by articles 6 and 7 of the Covenant.22 The Committee also recalls that there must be an opportunity for effective, independent review of the decision to expel an individual, with suspensive effect, if there are arguable claims under article 7 of the Covenant.23
In the present case, the Committee observes that the only ground for the State Party to refuse for processing the author’s application for refugee status was that he was not a foreigner ‘undergoing an entry inspection’, pursuant to article 6 (1) of the Refugee Act. While recognizing that the obligations under the Refugee Convention (1951) ratified by the State Party are implemented through the national legislation of its States Parties, the Committee considers that the national laws must observe in parallel the obligations under the human rights law, including the Covenant. In view of the above, the Committee considers that the author was denied his right to seek asylum as of 15 February 2020 for the mere fact that he was a transit passenger, and not at the port-of-entry, i.e. the State Party’s border or territory. The Committee therefore finds that the author was deprived of the opportunity to seek protection from refoulement to the DRC, since his application for refugee status was rejected on formal grounds. The Committee therefore concludes that the State Party violated the author’s rights under article 7 of the Covenant.24
- A.B. and B.D. v. Poland, para. 9.5 (read in conjunction with art. 2 (3) of the Covenant). ↩
As concerns article 9 (1), the Committee notes the author’s claim that once the State Party’s immigration authorities refused to accept his application for refugee status, the author was detained since 15 February 2020 in the transit area of the Incheon International Airport, without legal ground as no administrative order has been issued; and for indefinite period and without a possibility of review of the legality of his detention in the transit area. The Committee notes the State Party’s argument that the foreigners whose applications for refugee status were refused for processing at the border are free to leave the State Party; that if they decline leaving the territory, they are obliged to remain in the airport premises but they can move freely in the departure and transit areas, and that the State Party’s authorities did not issue any decision imposing detention on the author in the airport transit area. The Committee also observes that while the author filed an administrative litigation, he was obliged to await the outcomes of the judicial proceedings in the transit area for 14 months, until he was released on 13 April 2021, considering also the rulings of the Incheon District Court on 4 June 2020, and of the Incheon High Court on 21 April 2021.
The Committee recalls its jurisprudence that the deprivation of liberty involves more severe restriction of motion within a narrower space, including confinement to a restricted area of an airport,25 and such deprivation of personal liberty is without free consent.26 The Committee also observes that the detention of refugees for lengthy and indefinite periods can be arbitrary.27 In the present case, the Committee considers that it is not disputed by the State Party that the Incheon International Airport transit area falls under its jurisdiction.28 The Committee also notes the author’s claim that he was subjected to de facto detention for 14 months in this transit area, without possibility to exit the airport in other way than leaving the State Party, and that his habeas corpus application turned ineffective and he secured his release from the transit area only through administrative litigation in the alternative. The Committee therefore finds that the author was detained in the airport transit area without legal ground, as no administrative order was issued against him; and for indefinite period and without appropriate justification, as the author did not know from the outset for how long he would be deprived of his liberty; and without establishing proportionality or necessity of such measure, as he was de facto expected to leave the transit area for another country, which has amounted to arbitrariness in the circumstances of the case; thereby violating his rights under article 9 (1) of the Covenant.
- General comment No. 35 (Article 9), CCPR/C/GC/35, para. 5. ↩
- Ibid., para. 6. ↩
- Bakhtiyari et al. v. Australia, para. 9.3, and Tran v. Australia (CCPR/C/143/D/3665/2019), para. 10.4. See also ECtHR, Z.A. and Others v. Russia (Applications nos. 61411/15, 61420/15, 61427/15 and 3028/16), Grand Chamber judgement of 21 November 2019, paras. 164-171, and 187-197. ↩
- ECtHR, Z.A. and Others v. Russia (Applications nos. 61411/15, 61420/15, 61427/15 and 3028/16), Grand Chamber judgement of 21 November 2019, paras. 129-134. ↩
Regarding article 10 (1), the Committee notes the author’s assertion that he was detained in inhumane and insanitary conditions in the transit area during the Covid-19 pandemic, and that he was held without any protection measures amid the COVID-19 pandemic. It also notes the State Party’s objection that the author was provided with food, accommodation, access to medical care, sanitary facilities as well as legal counselling (paras. 6.5, 7.7 and 10.8 above). The Committee, however, observes that the author was exposed during the Covid-19 pandemic to insanitary conditions, lack of sufficient accommodation, adequate food and medicines and non-stop light for 24 hours, until he was released on 13 April 2021.29 The Committee finds that the author’s rights under article 10 (1) of the Covenant have been violated.
- General comment No. 21: Article 10 (Humane treatment of persons deprived of their liberty), para. 3, re. safeguards for individuals in vulnerable situations. ↩
The Human Rights Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the State Party has violated the author’s rights under articles 7, 9 (1) and 10 (1) of the Covenant.
In accordance with article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State Party is obligated to provide appropriate compensation for the material and moral harm suffered by the author. The State Party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.
Bearing in mind that, by becoming a Party to the Optional Protocol, the State Party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State Party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State Party is also requested to publish the present Views and to have them widely disseminated in the language of the State Party.