Seoul Administrative Court Dismisses Nationality Selection Notification Lawsuit
1. Case Overview
On December 6, 2024, the Seoul Administrative Court ruled against a dual citizen, referred to as A, in a lawsuit challenging the refusal of his nationality selection notification submitted to the head of the Seoul Southern Immigration Office (Case No. 2024구합67344). A holds dual citizenship from both South Korea and the United States and expressed his intention to maintain his South Korean nationality by submitting a nationality selection notification. However, the immigration office rejected his application. In response, A initiated administrative proceedings, but the court upheld the legality of the immigration authority’s decision.
2. Reasons for Notification Refusal
The primary reason for A’s notification rejection was the court’s determination that A’s mother had lived abroad at the time of his birth specifically “to facilitate her child’s acquisition of foreign nationality.” According to Article 13, Section 3 of the Nationality Act, “a person recognized as having been born while his or her mother was residing abroad for the purpose of acquiring foreign nationality can only select South Korean nationality if they renounce their foreign nationality.” This means that if a parent gives birth abroad with the intention of granting their child a foreign nationality, the child must renounce that foreign nationality in order to retain South Korean citizenship.
The enforcement decree of the Nationality Act specifies the following criteria:
- If a mother, who was living in South Korea, travels abroad and gives birth while residing there, it is regarded as being for the “purpose of acquiring foreign nationality.”
- However, if either parent has resided abroad for a combined total of over two years before and after the child’s birth, this may be considered an exception.
A argued that his parents had resided in the U.S. for over two years in total around the time of his birth and that this exception should apply to his case.
3. Court’s Judgment
The court concluded that the immigration office’s refusal was lawful.
- “The intent to acquire nationality does not need to be the sole purpose of residency.”
The judiciary noted that considering the essence of the enforcement decree, “the sole aim of obtaining nationality is not a requirement, and even if there are other intentions present, if the intent to acquire foreign nationality exists at the time of birth, the rule could apply.”
In other words, even if A’s mother had other reasons for staying in the U.S. during childbirth, if there was an intent to grant A U.S. nationality, it would fall under the jurisdiction of nationality restrictions.
- “Claim of parent’s residency exceeding two years is not simply additive.”
While A contended that because his parents’ combined stay exceeded two years, this qualifies for the exemption, the court ruled that “it cannot be simply asserted that any arbitrary calculation of residency, before and after birth, justifies the application of the exemption rule.” This means that the parents’ residency must be continuous and stable, indicating actual living arrangements, rather than a mere extension for the purpose of childbirth, to qualify for the exception.
4. Key Summary
A reported his desire to select South Korean nationality, but the immigration authority rejected this request.
- Reason: They ruled that A’s mother had been staying abroad “with the intention of acquiring foreign nationality” at the time of his birth.
- Court Decision: The refusal of the nationality selection notification was deemed valid.
- Observation: Even if parents’ residency exceeded two years, simply combining durations does not qualify for an exception.