Monday, May 25, 2009

The NHRCK report

 The Rise and Fall of E-2-visa HIV testing in South Korea, 1988 - 2017

Part 1: The 1988 Olympics and Korean fears of AIDS
Part 2: HIV testing for foreigners in the aftermath of the 1988 Olympics (unfinished)
Part 3: Anti-English Spectrum begins to link foreign English teachers to AIDSPart 5: Using their own articles, Anti English Spectrum petitions for E-2 visa changes

To add this to the above series of articles posted and compiled in December 2022, I've taken this post from May 2009 and added a new introduction to explain the context it originally appeared in.

As is elaborated on below, Benjamin Wagner, then a law professor at Kyunghee University, became interested in discriminatory aspects of the E-2 visa policy in 2008 and submitted an official petition to the National Human Rights Commission of Korea (NHRCK) on February 4, 2009. That day it was reported that the Association of Teachers of English in Korea (ATEK) (which was first mentioned in the Korea Times in January 2009) was carrying out a campaign titled “Equal checks for all” on its website and also encouraging E-2 visa holders to submit their own complaints to the NHRCK. A week later, an article by Wagner was published in the Korea Times ("Testing Teachers for Drugs and AIDS") explaining his position on the E-2 visa regulations. I covered ATEK's campaign promoting the submission of complaints to the NHRCK, as did the Joongang Daily.

ATEK officially launched in March 2009 and promoted the "Equal Checks for All" campaign, which, as is alluded to below and explained in more detail by Roboseyo, caused a rift between E-2 and F-visa holders, caused in part by a belief among F-visa holders that ATEK was encouraging checks for them (when they were arguing that E-2s should have the same checks as Korean teachers), a belief encouraged by repeated and incorrect reporting by a certain Korea Times reporter. This rift helped prompt the publication of Wagner's report here.


Here is the background of the report Professor Benjamin Wagner submitted to the National Human Rights Commission of Korea, as related through conversations with Professor Wagner. I should note that he contacted me last year because he was interested in my post "A brief history of scapegoating English teachers in Korea," and we finally had a chance to meet after he submitted his report to the NHRCK. 

While it is known that he submitted a complaint to the NHRCK in February 2009, he had actually submitted a 16 page report about six months earlier. That report was an informal brief, and not an official complaint, but the commission found it difficult to read the report in English, and also realized that an investigator with more legal expertise was needed. A different investigator was found, and Wagner began expanding the report and translating it into Korean. The December 30, 2008 introduction in the Korean National Assembly of a bill proposing an amendment of the Immigration Control Act propelled him to submit a new report as part of a formal complaint to the NHRCK. He learned of ATEK's existence and, hoping to draw attention to the complaint, contacted them. This led to the interview posted on the Marmot's Hole. The complaint was submitted on February 4, 2009.

  When he initially received the Receipt of Filing a Complaint, the respondent section was marked 'Confidential.' He asked that it be 'Open', and was granted this, but the NHRCK continued to treat it as 'Confidential' because that is how it always handles complaints. The investigation is handled confidentially, and no one part of the case can be 'detached' and be made available publicly. Even the Ministry of Justice had to ask Wagner for a copy of the report, which he sent them (and continues to send them updates). 

 Worth pointing out is that on October 5, 2008, the Korea Times published an article titled "Ethnic Korean Teachers Not Screened for Criminal, Drug Record." This had nothing to do with ATEK or Professor Wagner, and it argued that people with other visa types should be tested in the same manner as E-2 visa holders. Note that the same author wrote the February 4, 2009 Korea Times article "Foreign Teachers Fight 'Discrimination'; Justice Ministry Discounts the Claim." Note these two paragraphs:
In response, many E-2 visa holders have complained that the government should apply the same visa screening rules to foreign English teachers holding other visas. They are urging the government to use the same restrictions on teachers holding E-1 (professorship), F-2 (spouse of a Korean) or F-4 (ethnic Korean) visas. 
"The visa rules for E-2 visa holders should be revised as they clearly discriminate on the basis of national origin,'' said Benjamin Wanger[sic], a professor of Kyung Hee University.'
We see that in the first paragraph, the author has restated the thesis of his October article, but then follows it with an unrelated statement from Wagner which makes it appear as if he is supporting the previous paragraph. Other problems occurred in a February 05, 2009 Joongang Ilbo article titled "Visa rules for foreign English teachers challenged." A “non-adversarial approach” and "This was a disingenuous way to introduce the requirements," Wagner argued. "Over the past year nearly 20,000 non-citizens have been subject to in-country HIV and drug tests, without reasonable grounds" are actual quotes from him. The other quoted material in the article was never said by him. This includes a quotation which made it appear as if he was speaking for ATEK. As he has made clear to me, "I do not and have never represented ATEK." 

Other Korea Times articles have been factual, mainly because they were written by Wagner himself, such as the February 11, 2009 article "Testing Teachers for Drugs and AIDS." On March 6, Lee Bok-nam, the director of the Border Control Division of the Korea Immigration Service responded with an article titled "Misunderstanding About Visa Rules," in which he argued:
First, requiring submission of criminal and health records is a matter of whether or not to allow entry of foreigners with visa issuance, not a matter of restricting the constitutional basic rights of person regarding employment of certain occupation.
Wagner's response, in a March 18 Korea Times article titled "Correcting ‘Misunderstanding’ of Visa Rules," included this:
In 2007, when the E-2 visa "policy memo'' (without the status of law) required over 17,000 E-2 visa holders already residing in the ROK to report to national hospitals for HIV and drug tests, this was not "entry requirements.'' These foreigners had long since entered the country and had taken up residence. The Constitution of this nation most certainly afforded them protection. Article 37(2), which Lee is so quick to brush aside, demands that a legitimate and non-discriminatory law (not a "policy memo") be enacted before the rights and freedoms of individuals can be restricted.
Due to this statement by the Korea Immigration Service, Wagner then researched and submitted another report to the NHRCK challenging the "entry requirements'' argument. 

 As it became obvious there was a lot of interest from F series visa holders about the report, he decided to make the report public so people could see it for themselves, and explained this to the NHRCK. The reason for the delay was the fact that he had to combine three different reports into one 'final' report, and organize the 236 footnotes. This report has also been sent to the NHRCK and the Ministry of Justice. It should be pointed out that there continue to be documents sent back and forth, and that there is no definitive 'original text', and thus no 'final report.' This text will be updated as new research is added.

 [Original Post] 

Here is the report Professor Benjamin Wagner submitted to the National Human Rights Commission of Korea. As there is a lot of interest in this, I'm going to post it now and will add more information soon. 

[Update, December 30, 2022: The original service that hosted the report is now a pay service, so I've uploaded the report here. ]