UTIAC 1. Law
(a) For the purposes of determining whether a person is ‘of’ or ‘has’ a nationality within the meaning of Article 1A(2) of the Refugee Convention, it is convenient to distinguish between cases where a person (i) is (already) of that nationality; (ii) is not of that nationality but is entitled to acquire it; and (iii) is not of that nationality but may be able to acquire it.
(b) Cases within (i) and (ii) are cases where the person is ‘of’ or ‘has’ the nationality in question; cases within (iii) are not.
(c) For these purposes there is no separate concept of ‘effective’ nationality; the issue is the availability of protection in the country in question.
(d) Nationality of any State is a matter for that State’s law, constitution and (to a limited extent) practice, proof of any of which is by evidence, the assessment of which is for the court deciding the protection claim.
(e) As eligibility for Refugee Convention protection is not a matter of choice, evidence going to a person’s status within cases (i) and (ii) has to be on ‘best efforts’ basis, and evidence of the attitude of the State in question to a person who seeks reasons for not being removed to that State may be of very limited relevance.
2. Korea
(a) The law and the constitution of South Korea (ROK) do not recognise North Korea (DPRK) as a separate State.
(b) Under South Korean law, most nationals of North Korea are nationals of South Korea as well, because they acquire that nationality at birth by descent from a (North) Korean parent, and fall therefore within category (i) in 1(a) above.
(c) South Korea will make rigorous enquiries to ensure that only those who are its nationals are recognised as such but the evidence does not show that it has a practice of refusing to recognise its nationals who genuinely seek to exercise the rights of South Korean nationals.
(d) South Korean law does not generally permit dual nationality (North Korean nationality being ignored for this purpose).
(e) South Korean practice appears to presume that those who have been absent from the Korean Peninsula for more than ten years have acquired another nationality displacing their South Korean nationality; such persons therefore move from category (i), in 1(a) above, to category (iii).
Judges:
Ockleton VP, Gleeson SIJ
Citations:
[2011] UKUT 92 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 03 September 2022; Ref: scu.430363
