Law

1. Citizenship Law

a. Jus sanguinis and jus soli Provisions

The citizenship law of the Republic of Korea (South Korea) operates mainly through a jus sanguinis structure with one jus soli provision. According to the Nationality Act, a child born to one or two citizen parents is considered a citizen, with no distinction made regarding the individual’s place of birth. Citizenship by acknowledgement is also possible for foreign citizen children who have a citizen parent. There is no definition of statelessness or a stateless person included in the citizenship legislation of South Korea.

b. Naturalized Citizenship

Stateless persons are not included in the naturalization provisions of South Korea’s Nationality Act. However, non-citizens may gain citizenship by naturalization if they “sustain a domicile” in South Korea for at least five years, are financially independent, and have basic knowledge of Korean language and customs. Reports however suggest that the process of naturalization takes place for a prolonged period and is too difficult to obtain for stateless refugees, making their situation precarious and opening them to prolonged periods of statelessness. A simplified naturalization process is open to limited foreigners who satisfy the categories of making an outstanding contribution to South Korea, or having a parent who is a South Korean national, or whose spouse is South Korean, among others.

c. Dual Citizenship

Dual citizenship is not recognized in South Korea. In order to gain South Korean citizenship, a person with foreign citizenship must renounce their prior citizenship within one year of receiving South Korean citizenship. A South Korean citizen will lose their citizenship upon gaining citizenship of another state. However, a 2010 amendment to the Nationality Act made an exception to this for children born to South Korean parents outside the territory of Korea, marriage migrants, naturalized foreigners of outstanding talent and those who previously held Korean citizenship. As a result of the amendment, eligible persons can maintain dual citizenship by making a pledge to the Minister of Justice not to exercise their non-South Korean citizenship while in South Korea.

2. Treaty Ratification Status

South Korea is the only state in East Asia and one of only six states in the Asia Pacific that has acceded to the 1954 Statelessness Convention. While it has not acceded to the 1961 Convention on the Reduction of Statelessness, it has ratified the 1951 Refugee Convention and its 1967 Protocol, ICCPR, ICESCR, ICERD, CRC, and CEDAW. A 2021 Mapping report of Statelessness in South Korea notes that while the Constitution of the country stipulates that international treaties should be considered part of domestic law, in practice that 1954 convention is not applied as domestic law (most notably in the lack of codified definitions of statelessness and stateless persons). Upon signing CEDAW, South Korea made a reservation stating that the country is not bound to Article 9, which stipulates gender equality in nationality. Article 9 also states that the “State Parties shall grant women equal rights with men to acquire, change or retain their nationality” and that change of nationality of the husband shall not automatically alter the nationality of the wife, “render her stateless or force upon her the nationality of the husband”. South Korea also made a reservation on Article 16(1)(g), which provides equal rights of husband and wife, particularly “to choose a family name, a profession and an occupation”.

In its 2023 concluding observations, the Human Rights Committee expressed concerns regarding the severe lack of anti-discrimination legislation, including on the grounds of nationality. Further concerns expressed by Committee is with regard to reports of pervasive hate speech towards “escapees from the Democratic People’s Republic of Korea and Muslim migrants and refugees” as well as “towards migrants, asylum-seekers and refugees during the coronavirus disease (COVID-19) pandemic, including by politicians and public figures, both offline and online”. This was echoed in 2017 concluding observations by the CESCR Committee, which found the exclusion of non-citizens from the country’s social security system and public services concerning. As a party to both of the ICCPR and ICESCR, South Korea is bound to protect the right to freedom from discrimination. South Korea did not respond to the concerns regarding discrimination on the grounds of nationality specifically in the follow-up to the CESCR Committee’s concluding observations. The Rapporteur responded that South Korea’s progress in ensuring non-discrimination on all prohibited grounds of discrimination is insufficient.

On birth registration, the Human Rights Committee in 2023 observed the issue of the requirement for foreigners to go to their respective embassy in order to register the birth of their child, making birth registration effectively unavailable for stateless persons. The issue of birth registration for foreigners was also mentioned in the CERD Committee’s concluding observations in 2019. The Human Rights Committee has recommended expediting the enactment of the bill on birth registration for foreign children in South Korea. The CEDAW Committee stated in 2019 that the children of undocumented, unmarried migrant women are at particular risk of statelessness due to administrative and legislative barriers to birth registration. As a party to both the ICCPR and the CRC, South Korea is obligated to ensure that every birth in its territory is registered immediately – not just the births of citizens. In the 4th cycle UPR submission for South Korea, it was recommended that the country “establish a universal birth registration system which includes children of refugees, asylum-seekers, stateless persons, persons of undetermined nationality and undocumented persons” as well as ensure that every birth in the country is registered immediately. In an effort to comply with the Global Compact on Migration, South Korea made a pledge in January 2023 for “introducing a birth registration system for foreign children” by December 31, 2026.

The 2019 concluding observations by the CERD Committee also included concerns regarding legislative provisions that require the passport of the mother for citizenship applications for children born out of wedlock to a foreign mother and Korean citizen father. As a result, instances where issuance of a passport to the mother is not feasible, leaves children in such a scenario unregistered. It was recommended that South Korea amend the relevant provisions to remove barriers to citizenship for children born out of wedlock to a Korean citizen father and foreign mother. In South Korea’s 2019 follow-up report to the CERD Committee’s concluding observations, it clarified its intentions by reporting its actions to draft a new bill to address issues with birth registration in the country. It also explained that for children born out of wedlock, the ‘citizenship by acknowledgement’ provision is meant to make acquisition of citizenship easier. In a follow-up report provided by a South Korean NGO Coalition, the Coalition noted that South Korea has not taken any actions to implement the recommendations provided by the Committee. The Coalition also stated that the government has previously expressed that it is unsure which branch of the government is responsible for overseeing birth registration. The Rappourter provided in its follow-up to this information that the ‘citizenship by acknowledgement’ provision does not remove all barriers to citizenship for children born out of wedlock to a foreign mother and Korean citizen father. The Rapporter further stated that the national legislation on citizenship in South Korea, contrary to the State party’s statement, does not fully protect all children from statelessness in its territory.

Status of Accession of International Human Rights Treaties

Country	Stateless 1	Stateless 2	Refugee	ICCPR	ICESCR	ICERD	CRC	CEDAW
Republic of Korea

Signifies that the country is a party to the convention

Stateless 1 – 1954 Convention relating to the Status of Stateless Persons

Signifies that the country is not a party to the convention

Stateless 2 – 1961 Convention on the Reduction of Statelessness

Population

1. Reported Stateless Persons

In 2022, the South Korean government officially reported 241 stateless persons to UNHCR, marking an increase from the previous year’s figure of 202 stateless persons. However, it’s important to note that this reported number has remained relatively stable at around 200 persons for the past five years. Despite these official figures, estimates based on immigration data and foreign residents suggest that as many as 10,032 stateless persons could be residing in South Korea. The lack of reliable official figures underscores the challenge in accurately assessing the number of stateless individuals in the country, as highlighted in UNHCR’s 4th cycle UPR submission for South Korea.

One group experiencing statelessness are ethnic Chinese defectors from North Korea who are unable to gain Korean citizenship due to ties to China. Around 33,000 defectors from North Korea entered South Korea between 1998 and 2023, 71% of which being women. South Korea does not recognise the legitimacy of the North Korean state and considers the entire Korean peninsula to be their territory and nationals of North Korea to be their nationals. Refugees from North Korea are however required to undertake a verification process and receive a ‘decision of protection’ which enables the creation of a new family registration. While most North Korean defectors are supported by government services, those who are of Chinese descent are denied refugee status and the government services that come with it. As of 2021, 30 of these defectors were recognized as stateless. Due to their stateless status, many have difficulty finding employment and accessing basic services. Some resort to posing as a North Korean national, which has led to prolonged detention in South Korea.

2. Persons at Risk of Statelessness

Both the CEDAW (Committee on the Elimination of Discrimination against Women) and ICERD (International Convention on the Elimination of All Forms of Racial Discrimination) Committees have expressed concerns regarding the obstacles encountered by children born to foreign parents in accessing birth registration and citizenship. In 2019, the CEDAW Committee highlighted in its concluding observations for South Korea that children of undocumented, unmarried migrant women face a heightened risk of statelessness due to difficulties in birth registration processes.

Those who face statelessness or are at risk of statelessness in South Korea encompass various groups, such as foreigners who lose their naturalized South Korean citizenship when renouncing their previous citizenship, repatriated former nationals who became stateless in Russia and Japan, stateless asylum seekers from North Korea and other countries, as well as children born to foreign parents.

Those who are stateless or at risk of statelessness in South Korea include individuals who lose their naturalized South Korean citizenship after renouncing their previous citizenship, returning former nationals who became stateless in Russia and Japan, stateless asylum seekers from North Korea and other countries, as well as children born to foreign parents.

3. Stateless Refugee

The 2021 mapping report identified 97 Vietnamese asylum seekers (and their descendants) who arrived in South Korea during the Vietnamese war, were classified as stateless due to an administrative gap and have not yet had their status resolved.

Causes of Statelessness

1. Lack of Legal Safeguards Against Childhood Statelessness

While foundlings as well as children born to two stateless parents have safeguards in place to apply for citizenship of South Korea, the same cannot be said for children of undocumented migrants. With the lack of legal safeguards, risk of statelessness of children of undocumented migrants and out-of-wedlock relationships runs high as the consulate of the migrants in several cases, have refused to register births of their children due to the “unlawful” residential status of the parent.

2. Citizenship Stripping

Citizenship stripping has fundamentally affected foreign spouses within South Korea in instances where their marriage is determined to be a ‘sham’. Prior to 2010, South Korea did not allow for dual citizenship in any form, with marriage migrants having to relinquish citizenship prior to being naturalized in South Korea. A number of marriage migrants were subsequently stripped of their citizenship and rendered stateless within South Korea, with minimal to no avenues for review.

3. Administrative Barriers

While South Korea has reported a birth registration rate of 100% to the UN Statistics Division, birth registration in the country is only counted for citizens. The lack of inclusion of foreigners and non-citizens in legislation requiring birth registration places children born to foreign, undocumented, and stateless persons at risk of remaining unregistered, which may place them at risk of statelessness. In South Korea, foreigners, including undocumented and stateless persons, as well as single mothers experience low birth registration rates. As possession of family registration ‘is the core evidence to identify a person to be [a] national of [South Korea]’ barriers to children of migrants from being registered places children of undocumented migrants at a profound risk of statelessness. In June 2023, South Korea’s state audit agency discovered that 6,000 births in local hospitals were not reflected in birth registration records, of which two thirds were births of a foreign mother. The US Department of State has estimated that there may be as many as 20,000 children born to undocumented foreigners in South Korea who are unregistered.Currently, in order to register the birth of their child, foreigners in South Korea, including stateless persons, are unable to register the birth with the South Korean government and must instead register the birth at their respective embassy, which is not possible for stateless persons. There is currently no legislation mandating birth registration for non-citizens of South Korea, while it is required for citizens. Undocumented persons often avoid exposing their identity to their embassy, face “insurmountable administrative barriers”, or are simply denied registration by their embassy, leaving thousands of childrens’ births in South Korea unregistered.

A bill was proposed in August 2022 as well as June 2023 in order to address the gaps in legislation for registration of the births of foreign children, but has yet to move through to enactment. The Human Rights Committee has recommended that South Korea expedite the enactment of the Bill to ensure foreigners, stateless persons, and undocumented persons access to birth registration. However, a different bill, the Protected Birth Bill, was passed by the National Assembly as of October 2023 and will enter into force in July 2024. Despite criticism of its potential social implications, the Bill seeks to improve birth registration and better protect children by allowing anonymous births, adoption, and orphanage care as well as requiring medical institutions to report births to authorities within 14 days.

South Korea

Overview

Law