Complexities of Renunciation and Selection of Korean Citizenship by Dual Nationals

The Seoul Administrative Court ruled that even if the period of stay abroad exceeds two years before and after giving birth to a child, if the purpose of staying abroad was to have the child acquire a foreign nationality, the child may not select Korean Nationality. An article by IPG Legal on renouncing Korean Citizenship may be found at: Renouncing Citizenship in Korea.

In December of 2024, the Seoul Administrative Court, ruled in favor of the plaintiff in a lawsuit (2024 guhap 67344) filed by the Plaintiff against the head of the Seoul Southern Immigration Office to cancel the rejection of his nationality selection report. The case is a significant precedence in Korean Nationality Law.

Facts

1. Plaintiff was born in the United States in July 2003 to parents who were South Korean citizens and thus held dual citizenship – South Korean and American citizenship.
2. In February of 2023, Plaintiff pledged not to exercise his foreign nationality in South Korea in accordance with Article 13 of the Nationality Act of Korea and declared his choice of nationality, stating that he would choose South Korean nationality. In response to this, the Korean Immigration Office rejected Plaintiff’s report, citing, among other reasons, the “inability to choose nationality and failure to renounce foreign nationality.”
3. At the time of birth of Plaintiff, the mother of Plaintiff may have been residing abroad for the purpose of having her child acquire American Citizenship.
4. Article 13, Paragraph 3 of the Korean Nationality Act allows a person whose mother is recognized as having resided abroad at the time of birth for the purpose of having the child acquire foreign nationality to declare her intention to choose Korean nationality only if she renounces her foreign nationality. The Enforcement Decree of the same Act defines a “person whose mother is recognized as having resided abroad at the time of birth for the purpose of having the child acquire foreign nationality” as a person born while the mother, who has a domestic place of residence, left the country after becoming pregnant and resided abroad for the purpose of having the child acquire foreign nationality. However, there is an exception in the provision that states that cases where the father or mother resided abroad for a total of two years or more before and after the child’s birth.
5. The Plaintiff claimed that his “mother did not reside in the United States for the purpose of having [him] acquire American citizenship . . . and [his] parents resided in the United States for a total of more than two years before and after birth, which falls under the exceptions stipulated in the Enforcement Decree of the Nationality Act.” Thus, the Plaintiff filed a lawsuit to overturn the rejection of the application by Korean Immigration.

Seoul Administrative Court Decision

The Seoul Administrative Court ruled that the decision by the Seoul Southern Immigration Office to reject the Plaintiff’s report was in violation of Korean law. The Court held that the Plaintiff’s mother gave birth to the child while she was staying abroad for the purpose of obtaining foreign citizenship for the Plaintiff opining that “When determining whether a person falls under the definition of ‘a person whose mother is recognized as having resided abroad at the time of birth for the purpose of having her child acquire foreign nationality’ as stipulated in the Enforcement Decree of the Nationality Act, the ‘purpose of having the child acquire foreign nationality’ does not necessarily have to be the only purpose. . . Since other purposes or motives can also be recognized, even if [Plaintiff’s] mother had some purpose of ensuring a safe birth, this alone does not mean that [Plaintiff’s] mother did not have the purpose of having [Plaintiff] acquire American citizenship.”

Regarding the Plaintiff’s claim that his parents resided in the U.S. for more than two years before his birth, the Seoul Administrative Court noted this fact “cannot be considered an exception if the combined period of arbitrary residence before the child’s birth and arbitrary period of residence after the child’s birth is more than two years.”

Sean Hayes is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only a few non-Korean lawyers as a Top Attorney by AsiaLaw,  IPG Legal is consistently ranked a Top Dispute Resolution Law Firm for our litigation, arbitration, and mediation services, and IPG Legal is consistently rated a top-tier law firm in corporate law, litigation, arbitration, franchise law, distribution law, estate law, family law, employment & labor law, and criminal defense.

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