Seoul Administrative Court

Due in part to the strong cultural influence of Confucianism, South Korea is a conservative society with a generally negative public perception of homosexuality. It was not until 2000, when Korean celebrity Seok-cheon Hong publicly announced that he was gay, that the public began to actively discuss LGBT issues. Despite such societal changes as greater recognition and understanding of gays and lesbians, homosexuality in South Korea, as in many other Asian countries, is still viewed as unusual and unwelcome.

Recently, however, the Seoul Administrative Court granted refugee status to a gay man facing persecution in Pakistan for his sexual orientation. The Pakistani man, whose name remains undisclosed, fled to Korea in 1996 after family members threatened to report his sexual orientation to the police; he lived illegally in Korea until he was caught last year by the agents of the Korean Immigration Bureau. He filed a petition for refugee status in February 2009, which was denied by the Ministry of Justice four months later. The Seoul Administrative Court overturned the ruling on the grounds that it is highly likely that “the plaintiff will be subject to persecution by the Pakistani government” if repatriated. Under the Pakistani Penal Code, “carnal intercourse against the order of nature” is a crime punishable by a fine and possible imprisonment of two years to life.

The Administrative Court’s decision has generated a debate among South Koreans; since it is the first time in Korean history that sexual orientation has been used as a basis for granting refugee status, some question its legitimacy. South Korea became a States Party to the 1951 Convention relating to the Status of Refugees (“Refugee Convention”) and the 1967 Protocol in 1992. Since then, 2,413 foreigners have applied for refugee status in South Korea. Only 145 applicants have been granted asylum for racial, religious, and political reasons.

Article 1A(2) of the Refugee Convention defines a refugee as a person who, “owing to a well-founded fear of being persecuted,” cannot return to his own country. Moreover, Article 1A(2) lists several grounds for persecution for which refugees may be granted asylum: race, religion, nationality, membership in a particular social group, or political opinion. A particular social group is defined as a group of people who share common immutable characteristics other than risk of persecution, such as background, customs, or social status. Countries such as the United States, the United Kingdom, the Netherlands, Germany, and Sweden have for some time accepted asylum claims based on an individual’s sexual orientation as a basis for membership in a particular social group. These countries, among others, have found that granting asylum on the grounds of sexual orientation is in compliance with the Refugee Convention.

Although the South Korean Supreme Court must review the Administrative Court’s holding before refugee status will be granted, this decision for the first time acknowledges sexual orientation as a valid basis for accepting asylum seekers, and reflects the changing attitudes of South Korean society towards gays and lesbians.