Korea, nationality, and refugee status

Three nationals of North Korea, who spent either ten or twenty years in China before claiming asylum in England, won their case in the Court of Appeal to be granted asylum in this country on the basis that they would not be able to return to South Korea. It was agreed that they have a well founded fear of persecution in North Korea; the appeal focussed on whether it was possible to safely remove them to South Korea.

Facts

There were three North Korean nationals in this appeal: SP, SP, and KK.

SP and SC

SP and SC left North Korea to move to China over twenty years ago. They met in China, and became partners. In 2007 they moved together to the UK and claimed asylum.

KK

KK moved from North Korea with her father, when she was a child, in about 1987. She remained there for ten years. In 2008 she claimed asylum in the UK

Asylum

All three of the asylum claims were initially rejected by the Home Secretary. However, it is not longer in contention that were they to be removed to North Korea they would have a well founded fear of persecution. If there is no other country to which they can be removed, their claims for asylum must succeed.

The Home Secretary maintains that they can be safely returned to South Korea.

Korea and nationality

The peninsula of Korea extends south from the North East corner of China. At the tip it nearly meets Japan. In the top corner it shares a small border with Russia. But the peninsula is home to two sovereign states.

The Democratic People’s Republic of Korea is known as North Korea, and the Republic of Korea is known as South Korea.

The Constitution of the Republic of Korea says,

The territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands.

 

And in the Nationality Act it is provided that anyone whose parents are nationals of Korea at the time of their birth, or whose father was a national of Korea but died before the birth, is a Korean national.

The Act prohibits dual nationality.

This means that people born in North Korea tend to have South Korean nationality. South Korea doesn’t recognise North Korea: so anyone born on the Korean peninsula with a father from the peninsula is South Korean.

However, the Protection and Settlement Support of Residents Escaping from North Korea Act provides that only those people who express a desire to live in South Korea shall be able to do so, and more importantly it says that people who have spent 10 years or more in a third country will be denied protection.

There are two reasons for this: many Chinese nationals try to present themselves as North Korean nationals (many of them are North Korean by ethnicity), and there is a presumption that people who have spent such a long period in another country have acquired nationality or protection there.

Tribunal decision

The tribunal made general conclusions about the law of the Refugee Convention, and the law of South Korea.

Convention

There are three ways in which nationality has meaning under the Convention:

1. someone is of a nationality;
2. someone is entitled to be of a nationality;
3. someone is not of a nationality (but may be entitled to acquire it).

This is a matter of a state’s law, and to a certain extent its practice.

Korea

South Korea does not recognise North Korea; under South Korean law most North Koreans have South Korean nationality (as per the explanation above). They do not permit dual nationality, and people who has been absent from the Korean peninsula for more than ten years acquire a new nationality, displacing their Korean nationality. In terms of their Korean nationality, being absent for ten years moves them from category 1 to 3 in the examples from the Convention.

Conclusion

As such it was held that the three appellants no longer had Korean nationality and were therefore not able to be deported under the Convention. Thus they were entitled to bet asylum.

Court of Appeal

Two Grounds of Appeal

The Home Secretary’s first ground of appeal was that it was “irrational” for the Tribunal to find a “conclusive presumption” that someone who has been absent from the peninsula for ten years will have lost their Korean nationality.

The second ground of appeal was that it was “premature” of the tribunal to come to a conclusion about refugee status without waiting to see what decision the South Korean authorities made.

First Ground

There was a “substantial amount” of expert evidence heard at Tribunal. Professor of International Studies at Leeds University, Christopher Bluth, said,

in practice the length of their residence in China, their connections to that country … would most likely cause their applications to be refused.

And Mr In Ho Song, a lawyer who practises in South Korea said,

it is almost impossible for North Koreans who have been outside North Korea for more than ten years and applied abroad to get approved entry into South Korea and acquire South Korean citizenship.

The Home Secretary wrote to the South Korean embassy asking for clarification about the policy; she received a reply saying that people who wanted to settle could settle. But as the Court of Appeal pointed out, they do not feel themselves bound by a decision of an English court, and this is no guarantee of anything.

KK had a solicitor who had just dealt with fourteen applications to the embassy. None was successful. They were refused on the basis that they had no documentation of their North Korean citizenship (very common) and they had been absent from the peninsula for more than ten years.

The legal error in the decision that the Home Secretary argued was the use of the word “presumption”. None of the experts mentioned a “presumption” of refusal after ten years’ absence. However, the Court of Appeal was satisfied that this was, “an attempt to explain the essential finding in familiar legal terms.”

Second Ground

The relevant case law was different to this appeal on the facts. But in accordance with the principles of MA (Ethiopia) the applicants had all acted in good faith. They had taken all reasonable steps to obtain the documents needed to show they are nationals of Korea.

And they instituted appeals which fell to be determined by the tribunal.

The Court of Appeal found that the tribunal was entitled to make the findings that it did. The letter that the Home Secretary wrote to the embassy was last minute and she did not try to force the issue diplomatically with them.

Since the three applicants are “not in a position to avail themselves of the protection of South Korea” then they are entitled to have their “claims determined in accordance with the present evidence.”