North Korean Asylum Seekers and Dual Nationality

Abstract

In recent years an increasing number of North Korean escapees have attempted to claim asylum outside of South Korea. One of the principal legal questions that tribunals face when addressing these claims is whether these asylum seekers should be considered as dual North/South Korean nationals, and, if so, whether that would disqualify them from refugee status due to article 1(A)(2) of the 1951 Refugee Convention. This states that an asylum seeker who is a dual national must fear persecution in both of his or her countries of nationality in order to be considered a refugee. This dilemma exists because under South Korean law, North Korean escapees are usually considered to be South Korean nationals, as the South Korean Constitution defines the country’s territory as encompassing the entire Korean peninsula. However, South Korean nationality is often viewed as merely theoretical, as it arguably does not automatically provide a right to actually enter or reside in South Korea. This article examines recent court cases from Australia, Canada, and the United Kingdom dealing with the issue of North Korean asylum seekers’ possible dual nationality. In each country, tribunals have employed different analytical frameworks to come to different conclusions. This article argues that these recent cases represent largely unsatisfying attempts to deal with a challenging issue, and that it would make more sense for tribunals to analyze the potential dual nationality of North Korean asylum seekers using the principle of ‘effective nationality’, which has often been endorsed by commentators but less commonly used by tribunals in recent years.