ATEK Interview With Prof

ATEK Interview with Prof. Benjamin Wagner by RO B ER T KO EH L E R on FEBRUARY 4, 2009 The Association for Teachers of English in Korea (ATEK) recently interviewed Kyunghee University Law School associate professor Benjamin Wagner, who has been researching the legal and human rights issues pertaining to foreign English teachers in Korea. ATEK was kind enough to send me the interview to post here. A note, however — the content of the interview does not necessarily reflect the views of this blogg
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   ATEK Interview with Prof. Benjamin Wagner by ROBERT KOEHLER  on FEBRUARY 4, 2009 The  Association for Teachers of English in Korea (ATEK) recently   interviewed Kyunghee University Law School associate professor Benjamin Wagner, who has been researching the legal and human rightsissues pertaining to foreign English teachers in Korea. ATEK was kind enough to send me the interview to post here.    A note, however — the content of the interview does not necessarilyreflect the views of this blogger, and I’m certainly not advocating anything (and would, of course, welcome dissenting opinions). In fact, for the record, I happens to support criminal background checks and drug tests for English teachers applying for E-2 visas. Nevertheless, what  Prof. Wagner has to say is quite interesting, and both the interview and the footnotes are well worth reading.   — Robert Koehler   Text ATEK Interview   In the course of the advocacy that ATEK pursues, we work with variousprofessionals in the education, business, and legal sectors. We have hadthe good fortune to catch up with Benjamin Wagner, J.D., AssociateProfessor of Law at Kyunghee University Law School. Professor Wagner isa member of the Hawaii State Bar Association. He teaches InternationalLaw and American Law and is a Center for International Human Rightsresearch fellow. Professor, I understand you‟ve been researching English teachers in Korea. How did we get your attention?  It was the E-2 visa requirements, particularly the pre-employment tests for illegal drugs that first sparked my interest back in December 2007. I‟m from Hawaii and, at about the same time, the State of Hawaii had decidedto implement random drug testing of its public school employees after thearrests of several teachers on drug charges. A Constitutional challenge, onthe grounds of the right to privacy, was raised and plans for testing  became less certain. ((See e.g. “ACLU will sue to halt teacher drug testing,” Star Bulletin, Sept. 15, 2007. Available at; see also e.g. “ACLU Announces Legal Challenge to First -Ever Random Drug Testing Policy for Public School Educators,” ACLU Press Release, Sept. 14, 2007. Available  at   4f67fc555773bec7fa08753))   I was discussing the E-2 requirements with some Hawaii colleagues andthey were focused on the right to privacy issue, which is obviously of greatimportance both in Hawaii and here in Korea, but I was more focused onthe discrimination issue. This confused them and one attorney asked me, “aren‟t they going to test Korean teachers as well?” That‟s when I explained that the drug tests – and HIV tests as well – would only beapplied to foreign teachers. That raised a few eyebrows to say the leastand, through the Center for International Human Rights here at Kyunghee University, I‟ve been looking at the issue e  ver since.  What have you found out?  I began looking for the srcin of the E-2 requirements, trying to figure outif there had been a law passed by the National Assembly. I found there had been a bill introduced (about a week after the arrest of Christopher Paul Neil) to amend the Immigration Control Act to provide the “legal basis” (as the bill put it) for requiring drug tests, a medical check, and criminal background checks on foreigners seeking working visas in Korea. The billfailed to reach the floor, because of the BBK crisis at the time, and that wasthe end of it. Until December 2008, at least, when the same bill wasreintroduced. But the E-2 requirements have been in full effect for over a year now, with foreign teachers undergoing in-country drug tests and HIV tests. So that got me wondering what the legal basis for that has been.  What is the current legal basis for the E-2 requirements?   I don‟t think there is one. For one thing, the requirements are not regulations ( 시행규칙 in Korean) as they have ofte n been called. I‟vespoken with the KIS, they‟ve been very cooperative, and have explained to me the line of authority they cite as the basis. Basically, it all comes downto a policy memo that was created by the KIS Residence Policy Team. There‟s a Korean    version (“ 원어민   회화지도 (E-2) 사증제도   개선   안내 ,” 2007. 11, 법무부 ) that used to be up on the KIS website, but it‟s since beenpulled (I have a copy if anyone‟s interested). There‟s also a much shorter version in English (“New Changes on the E2 Teaching Visa Holders inKorea,” December 10th, 2007, Residence Policy Division, Korea Immigration Service) that the KIS released. It was also pulled from theKIS website, but there are copies of it out on the web (seee.g. ).  The policy memo links English teachers to sex crimes, drugs and fraud, by explaining:Some E2 teaching visa holders in Korea were caught for fraudulentdiplomas, drugs, sexual offenses, etc.It goes on to explain that the requirements were introduced:In order to protect children and young students from those criminaloffenders and fraudulent diploma holders [because there is] a strong needto counter these problems. So the E-2 visa requirem ents aren‟t law?  They are certainly being treated as if they were legally based, but they  aren‟t regulations ( 시행규칙   in Korean) and they aren‟t part of an ordinance ( 시행령 in Korean). They are part of a policy memo.The line of authority cited by the KIS (from top to bottom) goes like this:Immigration Control Act (Article 10) > Immigration EnforcementOrdinance (Article 12) (which comes from the Executive branch, soalternatively translated as Presidential Executive Order, or PresidentialDecree) > Table 1 > policy memo created by the KIS Residence Policy  Division. Now all of these have been around for years so it‟s the policy  memo that changes things.This Table 1 ( 별표 1 in Korean), for example, lists various visa types (D-8,D-9, E-1, E- 2, etc.) and under “E -2 희화기도 (E- 2)”, it states “the Ministry  of Justice shall list the requirements and qualifications for foreign language instructors. . . ”. But it is a weak argument to claim this little Table 1 grants complete discretion to fashion any particular requirement the KIS chooses without review, and it certainly wasn‟t created to give legal basis for requiring thousands of non-citizens to submit to in-country  HIV tests and drug tests. The government is aware of this and that‟s why  we‟re seeing the sudden introductio n of bills and ordinances and regulations. There‟s a need to create a legal basis (see e.g. Art. 37(2) Constitution of Korea) and a policy memo from a lower echelon immigration division, created without any oversight, just isn‟t going to accomplish it.  We‟  ve heard about the bill under consideration in the National  Assembly. We‟ve also heard about new rules proposed by  immigration. What are they? How are they different?    It is a bit confusing. There was a flurry of legislative efforts just at the closeof last year. There is a bill ( 출입국관리법   일부개정법률안 [ 신학용의원   대표발의 ], No. 3356, December 30, 2008), and there is an immigrationenforcement ordinance and immigration regulations ( 출입국관리법   시행령   및   시행규칙   일부개정령 ( 안 ) 입법예고 , 법무부   공고   제 2008-158 호 ,December 31, 2008)The bill was introduced to the National Assembly on December 30, 2008 by 18 members of the National Assembly. This bill would revise theImmigration Control Act and allow the Korean Immigration Service torequire criminal background checks and medical testing as a condition of entry for any foreigners looking to come to Korea on working visas. Condition of entry: this means they‟d have to have the checks and tests done before they arrive?   The specific language of the proposed revisions says “ 소속   국가에서   발행한   건강검진증명서 ”, which appears to require the medical certificate to be issued by the „sending country‟ – the home country of the visaapplicant.  And the ordinance?  Notice of immigration enforcement ordinance ( 출입국관리법   시행령 ) wasgiven by the Ministry of Justice on December 31, 2008 and will besubmitted to the Ministry of Government Legislation for approval. Thisordinance has nothing to do with the E-2 visa or English teachers. But the Chosun published an article called “Bar for ForeignEnglish Teachers Raised” saying: “a revision of the enforcementordinance of the Immigration Control Law that prohibits   granting work permits to those with criminal records. The law requires those wishing to obtain the E-2 visa to submit a police   certificate of their personal criminal historyissued in the   country of citizenship or residence and stamped by the Koreanembassy. The new version also requires the applicants to handin a health certificate to show the person has no infectious or   sexually transmitted diseases . . .”     That is inaccurate in several aspects. There is no current Immigrationenforcement ordinance on the E- 2 visa requirements, so the “revision” comment is incorrect. And as English teachers know the requirements
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