This case concerned whether three appellants, originally from North Korea (DPRK), could lawfully be removed from the UK to South Korea (ROK).
Two of the appellants are partners. They were born and grew up in the DPRK before going to live illegally in China, where they met and formed a relationship. The UK could not return them to China, for fear they would be returned against their will to the DPRK, where they would be at risk of persecution for remaining outside the country illegally.
They claimed asylum in the UK in 2007. The third appellant was born in the DPRK. She moved to China with her father, living and working there illegally for 20 years, during which her father died. She claimed asylum in the UK in 2008.
According to Article 1A(2) of the 1951 Refugee Convention, if someone claims asylum on the basis that they have a well-founded fear of persecution in his/her country of origin, further conditions apply if they are entitled to acquire a second nationality. That person must take steps to seek protection under his/her second nationality, unless there is reason to believe s/he would be subject to persecution in that country also. Protection from a third state, in this case the UK, is a last resort.
It is accepted in international law that it is up to individual states to determine whether someone is one of its nationals. In this case, the Home Office had determined that the ROK treated North Koreans as nationals of the ROK. This was on the basis that Article 3 of the ROK's Constitution affords protection to all citizens of the peninsula of Korea, the ‘one Korea' as it sees it.
There is also scope under the ROK's 1997 Protection Act for support to be provided to lineal ascendants and descendants of North Korea. However, the Act is interpreted as giving the government the right to reject applications from persons who have not based their lives – in terms of family and work – in the DPRK for some time. In practice, the period of time after which applications for documents proving ROK citizenship will be rejected, is ten years.
Further reasons why applications for documentation of ROK citizenship will be rejected are: if the applicant does not want to settle in the ROK, or if s/he is deemed to be a Chinese national claiming to be North Korean in order to obtain documents. The defector issue is a serious irritant in relations with the DPRK and China.
In general, North Korean nationals can lawfully be removed to South Korea, as their treatment in South Korea does not amount to ill-treatment (Australian case of NBLC v Minister for Immigration [2005] FCA 1052) or persecution (under the European Directive 2004/83/EC or Article 3 of the ECHR). Thus, if the appellants could be said to be entitled to claim South Korean nationality, they would have to apply for protection as such.
However, the court found that whilst the appellants acquired South Korean citizenship at birth, they would be deemed by the ROK to have lost their South Korean nationality. They did not therefore have a ‘subsisting' or ‘demonstrable' entitlement to South Korean nationality. They were refugees with one nationality only – North Korean.
This is a complex area of law subject to frequent change. Individuals who believe they may have a human rights case or who may be in a similar position as the appellants in the above mentioned cases can contact us for expert advice and guidance. Our vast experience and knowledge in this field allows us to develop the best strategy to achieve the desired outcome. For further information please contact us on 0207 569 3035 or alternatively email us at info@ergensharif.co.uk
Two of the appellants are partners. They were born and grew up in the DPRK before going to live illegally in China, where they met and formed a relationship. The UK could not return them to China, for fear they would be returned against their will to the DPRK, where they would be at risk of persecution for remaining outside the country illegally.
They claimed asylum in the UK in 2007. The third appellant was born in the DPRK. She moved to China with her father, living and working there illegally for 20 years, during which her father died. She claimed asylum in the UK in 2008.
According to Article 1A(2) of the 1951 Refugee Convention, if someone claims asylum on the basis that they have a well-founded fear of persecution in his/her country of origin, further conditions apply if they are entitled to acquire a second nationality. That person must take steps to seek protection under his/her second nationality, unless there is reason to believe s/he would be subject to persecution in that country also. Protection from a third state, in this case the UK, is a last resort.
It is accepted in international law that it is up to individual states to determine whether someone is one of its nationals. In this case, the Home Office had determined that the ROK treated North Koreans as nationals of the ROK. This was on the basis that Article 3 of the ROK's Constitution affords protection to all citizens of the peninsula of Korea, the ‘one Korea' as it sees it.
There is also scope under the ROK's 1997 Protection Act for support to be provided to lineal ascendants and descendants of North Korea. However, the Act is interpreted as giving the government the right to reject applications from persons who have not based their lives – in terms of family and work – in the DPRK for some time. In practice, the period of time after which applications for documents proving ROK citizenship will be rejected, is ten years.
Further reasons why applications for documentation of ROK citizenship will be rejected are: if the applicant does not want to settle in the ROK, or if s/he is deemed to be a Chinese national claiming to be North Korean in order to obtain documents. The defector issue is a serious irritant in relations with the DPRK and China.
In general, North Korean nationals can lawfully be removed to South Korea, as their treatment in South Korea does not amount to ill-treatment (Australian case of NBLC v Minister for Immigration [2005] FCA 1052) or persecution (under the European Directive 2004/83/EC or Article 3 of the ECHR). Thus, if the appellants could be said to be entitled to claim South Korean nationality, they would have to apply for protection as such.
However, the court found that whilst the appellants acquired South Korean citizenship at birth, they would be deemed by the ROK to have lost their South Korean nationality. They did not therefore have a ‘subsisting' or ‘demonstrable' entitlement to South Korean nationality. They were refugees with one nationality only – North Korean.
This is a complex area of law subject to frequent change. Individuals who believe they may have a human rights case or who may be in a similar position as the appellants in the above mentioned cases can contact us for expert advice and guidance. Our vast experience and knowledge in this field allows us to develop the best strategy to achieve the desired outcome. For further information please contact us on 0207 569 3035 or alternatively email us at info@ergensharif.co.uk
SHARE
