Prejudice or ineptitude? Let court decide

In March Andrea Vandom was issued an E-2 visa renewal without submitting an HIV test, after she said it violated her human rights.

Now two months have passed and the affair is being taken to the Constitutional Court, where the ruling could have wide-ranging implications for thousands of expats in Korea.

"I felt discriminated against and violated that, just because I am a foreigner, that I am considered a risk," said Vandom, who teaches at a University in Gyeonggi Province. "There really is no evidence that foreigners are more likely to have AIDS or do drugs."

The case has been taken up by the Korea Public Interest Lawyers Group, funded by them and the Beautiful Foundation. They have also taken up a similar case involving a public school teacher who also objected to the testing.



Vandom said that her university had generally been supportive of her, but is occasionally worried by letters from immigration, which come twice a month threatening to revoke her visa and have her deported.

"They get the letters and it upsets them because they think they`ll lose a teacher. But I reassure them that I have a lawyer and my visa`s not going to be revoked and they`re pretty calm and supportive - until they get the next one."

The response from other expatriates has been mixed. "Some are supportive and see me as standing up for their rights too, but some are angry, especially the F-2 visas," she explains.

"They think that they will end up having to take all these tests too. It`s work and it`s money (to have the tests done) and they really don`t want that."

She has a similar take on immigration as many expatriates: that decisions made by them are often arbitrary and based on mood and appearance.

"Even the discriminatory rules they have are not applied equally to everybody."

She thinks the AIDS and HIV testing is counter productive.

"I also feel that if I got tested for AIDS and was positive, then they would fire and deport me, instead of helping me and letting me use the insurance that I had worked for to get treatment."

Ben Wagner, an American lawyer who teaches International law at Kyung Hee University Law School agrees that this is one of the most damaging aspects of the regulations. "If you have a deportation policy, then immediately you have a strong disincentive for people to get tested and for those who have AIDS to get treatment.

"The biggest problem is stigma and discrimination."

Wagner said that one of the hopes for the case was that the situation in Korea regarding AIDS and HIV would improve.

"The biggest hope is that the testing rate will rise. The majority of people that have AIDS don`t know it," he said. He pointed out that these people were the more problematic to society, because they are the ones who tend to spread it.

"The way to improve the AIDS situation in Korea is simple: You need to encourage voluntary testing by protecting their human rights."

The E-2 rules have been under fire from their inception in 2007. Initial press releases and presentations by immigration on the new rules differed from what was actually introduced.

Teachers were told that interviews in their home countries would be required and statements by immigration indicated that they would apply to all visas. They were told testing and criminal background checks were to be repeated each year. This did not happen.

Last year testing for cannabis related compounds was dropped from the mandatory testing requirements without clear reason.

Other criticisms center on the regulations failure to achieve what they set out to do.

"If I was an arch-conservative Korean I would also be fuming at these laws," said Wagner. He pointed out that the regulations still allowed Americans with criminal records to teach at a hagwon while taking drugs and having AIDS, owing to the number of loopholes in the system.

Wagner expects progress on the case to be slow. "It`s supposed to be six months, but (cases like this) tend to be longer," he said.

Vandom`s hopes for the case are simple:

"I hope they look at their laws and their goals. Their goals are to protect children, so they should introduce laws that actually do that," she said. "And they should apply them equally."

(paulkerry@hotmail.com)



By Paul Kerry