Ex Post Legislative Evaluation on Nationality Act
Ⅰ. Backgrounds and Purposes
▶ A number of indicators and indexes to assess the nationality law and policies have been developed in Europe. Among them, the Migrant Integration Policy Index (MIPEX), the Citizenship Policy Index (CPI), and the Citizenship Law Indicators (CITLAW) of the EUDO Citizenship merit analysis as useful means to evaluate the nationality law of the Republic of Korea.
▶ The 10th amendment of the nationality law in 2010 restrictively allowed multiple nationality in accordance to global legislation trends. Since December of 2018, while implementing an honor system that provides naturalization certificates to naturalized citizens, a prepositive principle of permanent residency was applied. With changes made to the national law, there’s a need to evaluate whether these changes accord with global trends and national interests as planned in the first place.
▶ Therefore, indexes to evaluate nationality law are developed for birthright nationality, general naturalization, loss of nationality, multiple nationality, and statelessness. The development of such indexes is a meaningful groundwork for establishing legislative evaluation standards for the nationality law.
Ⅱ. Major Content
▶ Acquisition of nationality at birth
○ According to the nationality law of the Republic of Korea, nationality is acquired at birth on the basis of jus sanguinis and only exceptionally by jus soli.
- The following indices may be employed for evaluating the rules regarding the application of jus sanguinis: ① whether the law contains a definition of the initial citizenry of the Republic of Korea, ② whether gender equality is observed in the application of jus sanguinis, ③ whether persons born abroad can acquire nationality jure sanguinis in the same manner as persons born in Korea, ④ whether the descendants of emigrants can acquire nationality jure sanguinis regardless of generations and without restriction, and ⑤ whether there are restrictions on the acquisition of nationality jure sanguinis by persons born out of wedlock.
○ The Nationality Act of the Republic of Korea lacks a provision that defines who the initial citizens were, but, even if such a provision existed, the fundamental question of whether a particular individual qualifies as a national in accordance with that definition would remain. Yet the real and potential confusion in the legal construction of the grounds and process of the current ROK nationals have become ROK nationals out of the Korean nation could be avoided or minimized if the law provided for a definition.
○ The increase of foreign-born nationals who lack an effective bond with the ROK raises the question of whether some rules should be introduced against limitless acquisition of nationality jure sanguinis by descendants of emigrants. The requirement of notification of the intention to retain nationality may be an option, which was debated in the policy discussion before the 1997 amendment.
○ The Nationality Act provides for acquisition of nationality by acknowledgment. This mode of acquisition should be discussed as a form of acquisition jure sanguinis, as it is for the establishment of filiality for a person born out of wedlock, a condition for applying jus sanguinis.
- A person born to a woman who is a ROK national and a foreign man out of wedlock acquires ROK nationality jure sanguinis, but a person born to a national man and a foreign woman out of wedlock may acquire ROK nationality only through acknowledgment by the father. The Korean law is more liberal than the laws of some countries that even require legitimation.
○ The Republic of Korea exceptionally grants nationality by jus soli, and statelessness may arise from the gaps of the rule. Therefore, an amendment of the nationality law should be discussed with a view to granting nationality to a person born in the Republic of Korea who would otherwise be unable to acquire the nationality of any country.
○ The introduction of some form of jus soli was on the agenda in an internal policy discussion within the Ministry of Justice. Among the multiple modes of jus soli, the one that requires the resident status of a parent was most seriously discussed. The discussion, however, has not continued.
▶ General Naturalization
○ The amended law in 2017 added status of residence as a qualification for general naturalization
- Before revision, qualifications for general naturalization included period of residency, age, good conduct, capacity to maintain livelihood, and basic grounding. After the revision, status of residence was added as a qualification.
- To be given a status of residence, good conduct, capacity to maintain livelihood, and basic ground are needed, therefore, a discussion is needed on whether these three qualifications should be applied repeatedly in the same manner for naturalization permission.
▶ Marriage Naturalization, Simple Naturalization, Special Naturalization
○ In case of marriage naturalization, although period of residency is mitigated, it does not differ from general naturalization as good conduct, capacity to maintain livelihood, and basic ground are required.
- In comparison to general naturalization, marriage naturalization is distinctive as it associates a part of citizens’ private life with the legal effect of granting nationality, and therefore should guarantee maximum autonomy. Accordingly, discussion is needed on whether qualifications of good conduct, capacity to maintain livelihood, and basic ground should be alleviated.
- In cases of simple naturalization and special naturalization, the three qualifications are partially alleviated, but discussion is needed on whether qualifications should be eased in comparison to general naturalization if there is parental connection to the Republic of Korea or if a person has done a meritorious deed.
▶ Naturalization Permit Requirements and Legalism
○ Good conduct requirement
- The amendment to legal enforcement regulation in 2018 specifies the requirement of good conduct to make one’s criminal history as a passive requirement for naturalization permission
- Specifying the requirements for good conduct is desirable in the standpoint of predictability and legal stability, but administrative discretion regarding naturalization permission should not be restricted
○ Capacity to maintain livelihood
- A discussion is needed on whether to set different standards for capacity to maintain livelihood in granting permanent residency and naturalization.
- Also, whether to set the criteria as a total fixed type or linkage type should be discussed.
○ Basic ground
- A discussion on whether to require fulfillment of criteria of integrity beforehand or to require only a minimum prospect of integrity is needed.
▶ Loss of Nationality
○ Automatic loss of nationality
- The following were reviewed: adequacy of nationality declaration period in cases of non-voluntary acquisition of a foreign nationality, validity of presuming the issue date of the first passport as the denationalization date when it is unclear due to acquisition of a foreign nationality, the problem of blocking nationality acquisition which does not permit multiple nationality as foreign passports are required documents when declaring denationalization
○ Denationalization decisions
- Reviewed institutional significance of denationalization decisions
○ Denationalization due to cancellation of naturalization or nationality reinstatement permission
- The following were reviewed: appropriateness of limiting cancellation of naturalization or nationality reinstatement permission, adequacy of regulation format for cancellation remedy, possibility and validity of canceling naturalization or nationality reinstatement permission for reasons not provided by the nationality law, and legitimacy of canceling naturalization permission if requirements were found to be insufficient ex posto facto without any reasons attributable to the person involved
○ Abandonment of nationality
- Reviewed the difference of opinions between the Ministry of Justice and the court on the possibility of reporting abandonment of nationality by a person with multiple nationality who has pledged nonuse of foreign nationality, and by a person
with multiple nationality who has acquired nationality based on provisions of special matrimonial precedents. Also reviewed the necessity of an exceptional system of permitting abandonment of nationality after the limited period.
○ Denationalization process
- Reviewed the necessity of fulfillment duties in declaring nationality abandonment (period and establishment of regulations)
▶ Multiple Nationality
○ The amendment of the nationality law proclaimed in May 2010 restrictively allowed multiple nationality, and the main contents are as follows.
- First, while changing the term ‘dual nationality’ to ‘multiple nationality’, a person with multiple nationality is to be treated only as a Korean citizen under domestic laws. Second, by improving the methods of choosing a nationality, a nonuse pledge is only needed in renunciation of foreign nationality. Third, in cases overseas birth, person can choose Korean nationality only after renunciation of foreign nationality. Fourth, nationality selection order system was implemented by improving the automatic denationalization system.
○ Multiple nationality system in general
- It is necessary to evaluate whether the goals of implementing the multiple nationality system in 2010 were reached. Specifically, indexes may include whether overseas Koreans and excellent personnel were included as nationals, and whether perceptions on multiple nationality has changed positively after the change in term.
- Also, it is necessary to review whether the provisions related to multiple nationality are easy to understand.
○ Main contents of the multiple nationality system
- The main contents of the multiple nationality system implemented in 2010 were reviewed. Then, analyses were conducted on the legal character of nonuse pledge and the legal status of persons with multiple nationality.
- Also, current methods of nationality selection were reviewed as issues were posed on the difference of nationality selection by gender and the low age of nationality selection.
○ Application of the multiple nationality system
- Checked if the nationality choice order system is well-managed in lieu of the automatic denationalization system.
- Reviewed whether the number of subjects permitted to multiple nationality should be increased, and if so, reviewed which categories must be newly formed or revised.
○ International treaties concerning statelessness pertain mainly to de jure statelessness, while there are widespread cases of de facto statelessness. The definition of de facto statelessness remains more or less unclear, but it is construed to include a variety of cases of ineffective nationality and undetermined nationality, which account for a greater and more serious proportion of the problems.
○ In the Republic of Korea, there are stateless persons who have entered the country after having been recognized as de jure stateless by a foreign country and persons who are merely recorded as stateless because of bureaucratic errors. More serious are the problems of persons who have become stateless because of causes that have occurred in the Republic of Korea, such as the revocation of naturalization on account of deceit, including marriage fraud or the use of a false passport. There are also persons who claim to be defectors from North Korea but lack proof of identity and therefore nationality. Children of asylum seekers or irregular migrants who lack birth registration are also outside of protection.
○ The current exceptional jus soli rule is insufficient in preventing statelessness at birth. The Republic of Korea is not a state party to the Convention on the Reduction of Statelessness, but the Convention’s rules against statelessness at birth should be considered as a guideline in a future amendment of the Nationality Act.
○ The Nationality Act carries no danger of generating statelessness due to the withdrawal of nationality on account of serious national interest reasons, because such denationalization is allowed only against persons who have acquired ROK nationality after birth and remain multiple nationals.
○ Despite the fact that the Republic of Korea is a state party to the Convention Relating to the Status of Stateless Persons, it does not have a statelessness determination procedure. There are differing opinions on which statute should provide for such a procedure and which body of the government should administer the procedure.
○ The Republic of Korea has not incorporated the rules on the status of stateless persons under the Convention Relating to the Status of Stateless Persons. Since the rules are almost identical to those on the status of refugees under the Convention on the Status of Refugees, the Refugee Act can be a model when legislation is undertaken to provide for the status of stateless persons pursuant to the Convention on the Status of Stateless Persons.
Ⅲ. Expected Effects
○ This research is a meaningful groundwork for developing proper indicators and indexes for evaluating Korea’s nationality law.
○ This research can be used as policy materials for establishing improved policies of the nationality system and laws