International Journal of Refugee Law Vol. 24 No. 4 pp.

793–814
© The Author (2013). Published by Oxford University Press. All rights reserved.
For Permissions please email: journals.permissions@oup.com
doi:10.1093/ijrl/ees052 10.1093/ijrl/ees052

North Korean Asylum Seekers and Dual

Nationality

ANDREW WOLMAN*

Abstract

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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 refu-
gee status due to article 1(A)(2) of the 1951 Refugee Convention. This states that an asy-
lum 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 theoreti-
cal, 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 dif-
ferent 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 com-
monly used by tribunals in recent years.

1. Introduction
Over the last two decades, the world has witnessed a continuous flow of
escapees from North Korea.1 The initial exodus was largely prompted by
catastrophic food shortages and famine in the mid-nineties, but the out-
flow has continued since that time, with the number of escapees fluctuat-
ing according to both the country’s economic condition and the severity
of sanctions for leaving or attempting to leave North Korea without an

*  Associate Professor, Graduate School of International and Area Studies, Hankuk University of
Foreign Studies, Seoul, Korea. This work was supported by the Hankuk University of Foreign Studies
Research Fund of 2012.
1 
UN Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights
in the Democratic People’s Republic of Korea’, para 35, A/HRC/10/18 (24 Feb 2009) (prepared by
Vitit Muntarbhorn). For the sake of readability, this article will use the terminology ‘North Korea’ and
‘South Korea’ interchangeably with the more formal terms ‘Democratic People’s Republic of Korea’
and ‘Republic of Korea’.
794 Andrew Wolman
exit visa. Many see escape as their only way out of a life of desperate
2

poverty. Others are fleeing persecution: Kim Jong Il’s dictatorship was
characterized by some of the world’s worst violations of human rights and
religious freedoms, and few observers are hopeful for short-term improve-
ments under the rule of his son and successor, Kim Jong Un.3 Most North
Korean escapees end up building difficult lives on the margins of Chinese
society, where they lack legal protection, often suffer exploitation or human
trafficking, and are under the constant threat of repatriation.4 Many oth-
ers are able to transit China to Thailand, Mongolia, Vietnam, and other

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countries, from where they generally hope to gain access to South Korean
protection. As of October 2010, approximately 20,000 North Korean
escapees have received protection from the South Korean authorities and
now reside in South Korea.5
In the last five years, however, an increasing number of escapees have
opted for a third option: asylum outside of South Korea. With varying
degrees of success, hundreds of North Koreans have applied for asylum
in a wide range of developed countries.6 Although exact figures are dif-
ficult to come by, some of the most popular destinations seem to be the
UK, Canada, Japan, and the US.7 Germany was a favored destination
country for North Koreans until 2003, but has accepted few applicants
since that time.8 In part, the broadening geographic scope of the North

2 
See, generally, R Margesson, E Chanlett-Avery & A Bruno, ‘North Korean Refugees in China and
Human Rights Issues: International Response and US Policy Options’ (2007) ‘Congressional Research
Service Report for Congress’, 4–15; S Haggard & M Noland (eds), The North Korean Refugee Crisis: Human
Rights and International Response (US Committee for Human Rights in North Korea, 2006); UN Human
Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights in the Democratic
People’s Republic of Korea’, paras 41–3, A/HRC/13/47 (17 Feb 2010) (prepared by Vitit Muntarbhorn).
3 
Freedom House, ‘Freedom in the World 2010: Worst of the Worst’ (May 2010), 15 (ranking North
Korea as one of 9 countries with the lowest possible ratings for civil rights and political freedom); Open
Doors, ‘World Watch List; Where Faith Costs the Most’ (Jan 2011), 4 (ranking North Korea as the
worst country in the world for persecution of Christians).
4 
The number of North Korean escapees in China is unclear, but recent estimates range from
100,000 to 300,000, Margesson, Chanlett-Avery & Bruno, above n 2, 4.  As of 2006, both the US
Department of State and UNHCR used a range of 30,000 to 50,000 as a working figure, ibid.
5 
S Lee, ‘Number of Defectors to Top 20,000’ Korea Herald (6 Oct 2010).
6 
See, eg, S Yang, ‘North Korean Refugees Head for Europe’ Radio Free Asia (28 Feb 2006),
<http://www.rfa.org/english/korea/nkorea_europe-20060228.html>; A Jung, ‘Canada Takes More
North Koreans’ Radio Free Asia (4 May 2010), <http://www.rfa.org/english/news/korea/canada-
nkorea-05042010131012.html>.
7 
According to figures compiled by the US General Accounting Office, 665 North Koreans applied
for humanitarian protection in the UK from Jan 2006 to Sept 2009, 350 of whom were granted asy-
lum. 213 North Koreans applied for humanitarian protection in Canada from 2006–9, 74 of whom
were granted asylum. From Oct 2004 until Mar 2010, 94 North Korean refugees were resettled in
the US, while at least 33 North Koreans sought asylum while present in the US, 9 of whom were
granted asylum. Over 100 North Koreans had entered Japan on humanitarian grounds as of 2009.
US General Accounting Office, ‘Status of North Korean Refugee Resettlement and Asylum in the
United States’ (2010), 4–5, 48–9.
8 
From 2000–3, Germany granted humanitarian protection to 189 out of 282 North Korean applicants,
while from 2004–9, it granted humanitarian protection to 2 out of 47 North Korean applicants, ibid, 49.
 North Korean Asylum Seekers and Dual Nationality 795
Korean exodus is probably a result of widely publicized difficulties that
North Korean escapees have experienced in adapting to South Korean
society, where they often face discrimination and unemployment.9
Destination countries in the developed world have generally recognized
the threat of persecution or torture that North Korean escapees would
face upon repatriation to North Korea (whether they initially left the coun-
try to escape persecution or to escape poverty). However, courts and asy-
lum officers have struggled with two other vexing issues in their refugee
determinations. The first issue is one of credibility: it is widely believed

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that a large percentage of North Korean escapees applying for asylum in
Western countries disguise the fact that they have already settled in South
Korea, receiving South Korean citizenship papers and financial assistance,
prior to asserting their asylum claim.10 If disclosed, this information would
almost certainly result in their deportation to South Korea, unless they
can show a fear of persecution there, as well.11 Recently, South Korean
authorities have agreed to review fingerprint data of North Korean asylum
applicants to the UK in an effort to assist UK authorities in determining
whether they have already settled in South Korea.12
The second issue, which is the focus of this article, is the question of
dual nationality, namely, whether North Korean escapees (who have not
already settled in South Korea) should be considered to be both North
and South Korean nationals, as South Korean nationality law appears to
ascribe South Korean nationality to most individuals born in North Korea.
In most countries (with the significant exception of the US), dual national-
ity, if accepted, would mean that North Korean asylum seekers would be
ineligible for refugee status unless they can show a fear of persecution in
both North and South Korea.13 However, courts around the world have
varied in the degree to which they accept the existence of this dual nation-
ality, especially in cases where doubts exist regarding whether the North
Korean asylum seeker would be permitted to enter South Korea. This

9 
See, eg, B Harden, ‘N. Korean Defectors Bewildered by the South’ Wash Post (12 Apr 2009); M Ser,
AL‘Cold Reception, Lack of Jobs Worry Defectors’ Joongang Daily (22 Jan 2007).
10 
J Chang, ‘Increasing Number of N.  Korean Defectors in S.  Korea Seek Asylum in Foreign
Countries’ Yonhap News (15 Sept 2010), <http://english.yonhapnews.co.kr/national/2010/09/15/1
5/0301000000AEN20100915005500315F.html>; H Jung & M Ser, ‘Defectors in South Fleeing to
Europe’ Joongang Daily (15 Sept 2010). The UK and Norway have apparently been particularly popular
destinations for North Korean asylum seekers who have already settled in South Korea, ibid.
11 
After having settling down in South Korea, North Korean escapees would generally be covered
by art 1(E) of the Refugee Convention, which states that, ‘[t]his Convention shall not apply to a person
who is recognized by the competent authorities of the country in which he has taken residence as hav-
ing the rights and obligations which are attached to the possession of the nationality of that country’.
Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137, art 1(E).
12 
S Park, ‘NK Defectors Flee from Seoul to UK for Asylum’ Kor Times (27 Aug 2010).
13 
While in a number of cases North Korean asylum seekers have claimed a fear of persecution in
South Korea for various reasons, these claims have generally been denied. See, eg, NBLC v Minister for
Immigration [2005] FCA 1052; In the Matter of K-R-Y-and K-C-S-, 24 I&N Dec 133 (BIA 2007).
796 Andrew Wolman
article will survey recent cases from Australia, Canada and the UK, each
of which deal with the issue in a different manner, followed by a discussion
of how dual nationality could more appropriately be addressed using the
principle of ‘effective nationality’.

2.  Dual nationality under international refugee law

Although the domestic framework for refugee protection varies from
country to country, developed countries’ refugee legislation tends to reflect
the requirements of the 1951 Convention on the Status of Refugees as

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amended by the 1967 Protocol Relating to the Status of Refugees (the
Refugee Convention).14 The Refugee Convention defines a ‘refugee’ as a
person who, ‘owing to well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is unable or,
owing to such fear, is unwilling to avail himself of the protection of that
country’,15 and, importantly, that:
[i]n the case of a person who has more than one nationality, the term ‘the coun-
try of his nationality’ shall mean each of the countries of which he is a national,
and a person shall not be deemed to be lacking the protection of the country of
his nationality if, without any valid reason based on well-founded fear, he has
not availed himself of the protection of one of the countries of which he is a
national.16
Two main interpretative questions have arisen in the case law on the exis-
tence of a dual nationality. First, there is the question of whether an asy-
lum seeker should be deemed to possess a dual nationality if he or she does
not currently possess that nationality, but instead must apply for it. Several
courts have held that an asylum seeker entitled to (but not currently pos-
sessing) a second nationality should be considered a dual national, as long
as there is no discretion in the award of that nationality, and it can be
obtained through mere formalities.17 This position has been challenged,
however, by the Office of the United Nations High Commissioner for
Refugees (UNHCR) and others, who argue that the plain language of the

14 
Refugee Convention, above n 11, and Protocol Relating to the Status of Refugees, 31 Jan 1967,
606 UNTS 267. As of 1 Apr 2011, there were 142 state parties to both the Refugee Convention and
its Protocol. An additional 5 countries were parties to one or the other, but not both treaties. See,
UNHCR, ‘States Parties to the 1951 Convention relating to the Status of Refugees and the 1967
Protocol’, at <http://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf>.
15 
Refugee Convention, art 1A(2).
16 
ibid.
17 
Bouianova, Tatiana v MEI (FCTD, no 92-T-1437), [Canada] Rothstein, 11 June 1993; Manzi v Canada
(Minister of Citizenship & Immigration), [2005] 3 FCR 429 (FCA) Décary; KK and ors (Nationality: North
Korea) Korea CG [2011] UKUT 92 (IAC) at para 82 (‘If he is entitled to nationality, subject only to
his making an application for it, he is also to be regarded as a national of the country concerned’).
 North Korean Asylum Seekers and Dual Nationality 797
Refugee Convention refers to an existing, rather than potential, national-
ity.18 This question is not relevant to the case of North Korean asylum seek-
ers because they are best understood as possessing formal South Korean
nationality from birth – even though that nationality may not always be
recognized by the South Korean government.19 The second main question
is whether an individual should be deemed to possess a dual nationality
if that nationality is ineffective, meaning that he or she does not possess
a right to enter and reside in the purported country of nationality. This
question is more relevant to cases involving North Korean escapees. As

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will be discussed below, courts have tackled this issue in different ways, but
have so far avoided employing an explicit ‘effective nationality’ analysis
that conditions the existence of dual nationality upon the individual’s right
to enter the country of purported dual nationality.
States have a number of duties with regards to refugees, including, most
prominently, the duty of non-refoulement. Thus, according to article 33 of the
Refugee Convention, an individual who is classified as a refugee cannot be
returned to a territory where ‘his life or freedom would be threatened on
account of his race, religion, nationality, membership of a particular social
group or political opinion’.20 In certain circumstances, however, he or she
may be returned to a safe third country that is able to offer effective pro-
tection. While the safe third country concept is primarily employed to send
asylum seekers back to countries that they have transited en route to their
destination country, in some countries it is more widely employed to justify
denials of protection. It should be emphasized that the safe third country
analysis is in principle entirely separate from the question of dual nationality.21

18 
See, eg, UNHCR, ‘UNHCR position on mixed Azeri-Armenian couples from Azerbaijan and
the specific issue of their admission and asylum in Armenia’ (2003), 3 (‘The text of article 1 (A) thus
clearly states that what matters for the purposes of the inclusion clauses is the nationality/ies that the
persons ­actually possess/es – not the nationality/ies that the person may eventually acquire.’); UNHCR,
‘UNHCR Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004 on
Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as
Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection
Granted’ (OJ L 304/12 of 30 Sept 2004) (2005), 14 (‘There is no obligation on the part of an applicant
under international law to avail him- or herself of the protection of another country where s/he could
“assert” nationality’); KK and ors, ibid, para 37 (quoting, but not following, Goodwin-Gill’s statement that
‘the express words of the second paragraph of Article 1A(2) of the 1951 Convention do not permit an
interpretation which would require the asylum seeker to take steps to obtain a possible second nationality’).
19 
KK and ors, above n 17, para 75.
20 
ibid, art 33(1).
21 
While the circumstances under which a third country can be deemed to provide effective pro-
tection are controversial, according to one UNHCR report, transfer of an asylum seeker to a third
country is acceptable if ‘that country provides a prior guarantee in relation to the individual case that:
(i) the person will be admitted to that country; (ii) will enjoy there effective protection, in particular
against non-refoulement; (iii) will have the possibility to seek and enjoy asylum; and (iv) will be treated in
accordance with accepted international standards’. S Taylor, ‘Protection Elsewhere/Nowhere’ (2006)
18 IJRL 283–312, 292 (citing UNHCR, ‘Finding Solutions to Secondary Movements: Elements for
an International Cooperative Framework’, paper presented at the Regional Ministerial Conference on
People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali II), 2003).
798 Andrew Wolman
The question of third country protection logically comes after the dual
nationality analysis because it is undertaken with respect to refugees, while
the dual nationality analysis is part of the process of establishing whether an
individual is or is not a refugee.

3.  Dual nationality and North Korean escapees

South Korean nationality laws are generally interpreted as providing that
North Korean escapees are automatically South Korean nationals due
to a combination of provisions of the South Korean Constitution22 and

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the South Korean Nationality Act.23 According to the 1948 Constitution,
the entire Korean peninsula is constitutionally considered as part of the
Republic of Korea (that is, including the area currently administered by
North Korea).24 The Constitution also states that the qualifications for
becoming a Korean national shall be prescribed by law.25
The legal prescriptions for nationality are in turn established by the
Nationality Act, which specifies that any person falling in one of the fol-
lowing categories ‘shall be a national of the Republic of Korea at birth’:26
1. A person whose father or mother is a national of the Republic of Korea at the
time of a person’s birth;
2. A person whose father was a national of the Republic of Korea at the time of
the father’s death, if the person’s father died before the person’s birth;
3. A person who was born in the Republic of Korea, if both of the person’s
parents are unknown or have no nationality.27
Thus, both scholars and courts have accepted that, in principle, provided
an individual born in North Korea is not descended from two foreign (non-
North or South Korean) parents, he or she would also be a South Korean
national from birth.28 It is also widely accepted, however, that this de jure
nationality is only theoretical, and does not automatically provide North
Koreans with a right of entry into South Korea, or indeed any of the ordi-
nary benefits of South Korean nationality.29

22 
Constitution of the Republic of Korea, adopted on 17 July 1948.
23 
Nationality Act (ROK), Law Number 16, 20 Dec 1948 (Nationality Act).
24 
Constitution, above n 22, art 3 (‘[t]he territory of the Republic of Korea shall consist of the
Korean peninsula and its adjacent islands.’)
25 
ibid, art 2.
26 
Nationality Act, art 2.
27 
ibid.
28 
See, eg, C Lee, ‘South Korea: The Transformation of Citizenship and the State-Nation Nexus’
(2010) 40 J Contemp Asia 230–51, 232; J Lee, ‘Ethnic Korean Migration in Northeast Asia’ in
Proceedings of International Seminar: Human Flows across National Borders in Northeast Asia (Monterey Institute
of International Studies, 2002), 118–40, 128; Nationality Act Case, 12-2 KCCR 167, 97Hun-Ka12 [Kor
Const Ct] (31 Aug 2000).
29 
I Chung et  al, ‘The Treatment of Stateless Persons and the Reduction of Statelessness: Policy
Suggestions for the Republic of Korea’ (2010) 13 Kor Rev Int Stud 7–30, 24 (‘[t]he treatment of North
 North Korean Asylum Seekers and Dual Nationality 799
In fact, there is considerable evidence that in practice the benefits
of nationality, including right of entry into South Korea, are normally
made contingent upon application and fulfillment of the criteria set out in
South Korea’s Act on the Protection and Settlement Support of Residents
Escaping from North Korea.30 This Act limits protection to North Korean
escapees in three different ways.
First, the Protection Act applies only to ‘residents escaping from North
Korea’, a category which is vaguely defined in article 2(1) as covering ‘per-
sons who have their residence, lineal ascendants and descendants, spouses,

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workplaces and so on in North Korea, and who have not acquired any
foreign nationality after escaping from North Korea’.31 This definition pro-
vides officials with the discretion to exclude North Korean escapees with
connections to foreign countries, such as those born in North Korea to one
parent of North Korean ethnicity and one parent of Chinese ethnicity,
who would automatically be considered South Korean citizens under the
terms of the Nationality Act. In fact there are reports of a small number of
North Korean nationals of Chinese birth, or partial Chinese ethnicity, who
escaped to the South but were not classified as North Korean escapees or
awarded citizenship, leaving them in a legal state of limbo.32
Second, article 3 of the Protection Act states the Act ‘shall apply to resi-
dents escaping from North Korea who have expressed their intention to be
protected by the Republic of Korea’, and article 7 of the Protection Act
provides that ‘[a]ny person who has escaped from North Korea and desires
to be protected under this Act, shall apply for protection to the head of an
overseas diplomatic or consular mission, or the head of any administra-
tive agency ...’ (emphasis added).33 This has been interpreted by some as

Koreans as nationals of the Republic of Korea remains no more than theoretical’); KK and ors, above n 17,
para 35 (quoting Bluth’s description of the gap between the principle of North Korean escapees’ citizen-
ship and the practice of discretionary grant of right of entry); 0909449 [2010] RRTA 763 [Australia] (7
Sept 2010), paras 56–7 (citing expert opinions from two Korean law firms that North Koreans’ right to
South Korean citizenship is a theoretical construct that does not provide a right of entry).
30 
Act on the Protection and Settlement Support of Residents Escaping from North Korea (ROK),
Law Number 6474, partial revision, 24 May 2001 (Protection Act). This Act also regulates the provi-
sion of a range of monetary and other benefits intended to ease North Korean escapees’ transition
into South Korean society. See, Chung et al, ibid, 24. (‘While “protection” in principle refers to the
package of resettlement benefits available to North Korean escapees settling in the South, in practice it
seems clear that protection is interpreted as a much broader concept, covering various measures rang-
ing from admission to a diplomatic mission and then to South Korea, to providing economic, social
and educational benefits on Korean territory.’); Refugee Review Tribunal 1000331 [2010] RRTA 932
[Australia] (25 October 2010), para 56 (citing in dicta a report from Hwang stating that South Korean
citizenship does not convey an automatic right to enter the country, and that the only legal avenue for
a North Korean escapee to enter South Korea is by applying for ‘protection’).
31 
Protection Act, ibid, art 2(1).
32 
H Cho, ‘“Wonsungimando mothan…” mugukjeok talbukjaui hansum’ [‘Less than a monkey…’ Sigh of a
North Korean Defector who has no Nationality] Nocut News (17 Apr 2011), <http://www.nocutnews.
co.kr/show.asp?idx=1776839>.
33 
Protection Act, above n 30, arts 3, 7.
800 Andrew Wolman
requiring that escapees have the ‘will and desire’ to be protected in order
to receive the benefits of the Protection Act, including a right of entry. It
is unclear the degree to which this factor is taken into account when deter-
mining eligibility to enter South Korea.34 An official of the South Korean
embassy in Canada stated in 2008 that North Koreans must demonstrate
that they possess the ‘will and desire’ to live in [South] Korea in order to
be considered as South Korean citizens.35 Similar statements have report-
edly been made by representatives of the Ministry of Unification and the
Ministry of Foreign Affairs and Trade, according to an expert submission

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prepared by Bluth.36 On the other hand, no evidence has been put forth in
any of the cases surveyed here of a North Korean escapee actually being
refused entry by South Korea solely because they did not profess a desire
to settle in South Korea.
Third, article 9 of the Protection Act specifically rejects protection for
the following persons:
1. International criminal offenders involved in aircraft hijacking, drug traffick-
ing, terrorism or genocide, etc;
2. Offenders of non-political, serious crimes such as murder, etc;
3. Suspects of disguised escape;
4. Persons who have for a considerable period earned their living in their respec-
tive countries of sojourn; and
5. Such other persons as prescribed by the Presidential Decree as unfit for the
designation as persons subject to protection.37
Scholars have noted that North Korean escapees who fall into one of the
article 9 exceptions may not be treated as nationals or allowed entry into
South Korea.38 This has on occasion been confirmed by South Korean
officials. For example, the South Korean embassy in Canada stated that
some North Korean escapees are ineligible for South Korean citizenship,
including, ‘“bogus” defectors, persons who have resided in a third country
for an extended period of time; and international criminals such as per-
sons who have committed murder, aircraft hijacking, drug trafficking or
terrorism’.39 The relevant officer at the South Korean Ministry of Foreign
Affairs and Trade was also quoted as saying that the South Korean govern-
ment can refuse to recognize or grant South Korean nationality in cases
covered by article 9 of the Protection Act.40 There is anecdotal evidence

34 
E Chan & A Schloenhardt, ‘North Korean Refugees and International Refugee Law’ (2007) 19
IJRL 215–45, 233, n 96.
35 
Kim v Canada, 2010 FC 720 (30 June 2010), para 15.
36 
KK and ors, above n 17, para 35 (citing Choi Kang-sok from the Inter-Korean Policy Division at the
Ministry of Foreign Affairs and Trade and Jo Jae-sop at the Ministry of Unification).
37 
Protection Act, above n 30, art 9.
38 
C Lee, above n 28, 232; KK and ors, above n 17, paras 34–5 (quoting Bluth).
39 
Kim v Canada, above n 35, para 15.
40 
KK and ors, above n 17, para 35.
 North Korean Asylum Seekers and Dual Nationality 801
of the existence of North Korean escapees who were not recognized or
permitted to enter South Korea, even when approaching South Korean
embassies or consulates outside of China.41
On the other hand, the South Korean authorities have at times issued
conflicting interpretations on this point. In 2004, the South Korean
Ministry of Diplomatic Affairs and Trade responded to an information
request by stating that an ‘applicant claiming to be North Korean must
first be investigated, a process which could take several months. Once the
claimant is determined to be a genuine North Korean, South Korean citi-

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zenship is automatically and immediately granted’.42 In 2005, the South
Korean Ministry of Diplomatic Affairs and Trade responded to a simi-
lar request by asserting that there is a presumption that North Korean
escapees would be able to receive citizenship, but the procedures would be
different and ‘more difficult’ for individuals falling into one of the article
9 exceptions, and that members of the ‘Chokyo’ group, who emigrated
to China around 1960, and their descendants, who live in China legally,
would be treated as ordinary foreigners rather than North Korean escap-
ees for immigration and nationality purposes.43
The process of determining whether a North Korean escapee meets
the criteria laid out in the Protection Act is administrative in nature, with
investigations and determinations conducted by the Ministry of National
Unification, unless national security might be affected, in which case the
Director of the National Intelligence Service makes the final decision.44
North Korean escapees who are deemed not to meet the Protection Act’s
criteria in principle have two other legal avenues to achieve recognition
of their nationality by the South Korean government. Article 20 of the
Nationality Act provides for a nationality adjudication procedure admin-
istered by the Ministry of Justice.45 Also, a North Korean can theoretically
obtain a declaratory judgment from a court that he/she has the national-
ity of the Republic of Korea (although no such judgment has ever been
issued).46 However, neither of these methods is available to North Koreans
outside of South Korea.47

41 
S Kim, ‘Kim Il-Sung’s Former Crony Denied Asylum’ Kor Times (12 Mar 2010) (recounting alle-
gations by a former high-ranking North Korean official and current Austrian asylum seeker that he
was denied entry to South Korea); KK and ors, above n 17 at para 44 (recounting a solicitor’s statement
that his firm has applied for assistance at the South Korean embassy in London for 14 North Korean
escapees, none of whom were granted citizenship or a passport). Within China, it is clear that, with
very few exceptions, the South Korean government will not assist North Koreans in entering South
Korea, or provide them with South Korean citizenship papers. A Lankov, ‘Bitter Taste of Paradise:
North Korean Refugees in South Korea’ in Haggard & Noland (eds), above n 2, 53–72, 58, n 12.
42 
0909449 [2010] RRTA 763, above n 29, para 80.
43 
ibid, para 81.
44 
Chung et al, above n 29, 24.
45 
ibid, 25.
46 
ibid.
47 
ibid.
802 Andrew Wolman
4.  Dual nationality of North Korean escapees: destination
country responses
With the growth in asylum claims by North Korean escapees outside of
South Korea, destination countries have in recent years begun to address
the question of whether escapees should be denied asylum due to their
possession of a dual North and South Korean nationality. The issue first
reached the public attention in the US, where a trickle of North Korean
escapees applied for asylum prior to 2004. Although there were a few suc-

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cessful applications, the US State Department’s basic position was that
North Koreans were not eligible for asylum because their dual national-
ity gave them access to South Korea.48 Responding to public pressure to
ease barriers to asylum for North Koreans, legislators shifted US policy
by passing the North Korea Human Rights Act of 2004, which specifi-
cally provided that for refugee determination purposes ‘a national of the
Democratic People’s Republic of Korea shall not be considered a national
of the Republic of Korea’.49 Since that time, North Korean asylum seekers
have had greater success in their US asylum claims, although the number
of applicants has remained low.50
More recently, the dual nationality of North Korean escapees has arisen
in connection with asylum applications in Australia, Canada, and the UK.
The following sections will review the holdings in cases from each country.

4.1 Australia
Over the past decade, there has been a significant number of Australian
asylum claims from North Korean escapees. While these claims have gen-
erally been denied; the legal reasoning behind the denials has undergone
a recent shift.
Prior to 2010, the issue of dual nationality was not raised in Refugee
Review Tribunal decisions. Rather, North Korean asylum seekers were
simply characterized as North Korean nationals, and found to be refu-
gees, without any analysis of whether they might be dual nationals.51 This
was accepted by the Federal Court of Australia, which stated in an appeal
by two North Korean asylum seekers that ‘each appellant is a person to
whom the term “refugee” applies within the meaning of article 1A(2) of

48 
N Hallett, ‘Politicizing U.S. Refugee Policy Toward North Korea’ (2006) 1 Yale J Int Aff 72–84, 76.
49 
North Korean Human Rights Act, HR 4011 s 302(B) (2004). It should be noted that the Act does
not authorize the provision of refugee status for North Koreans who have already ‘availed themselves
of those rights [to South Korean nationality]’, ibid, s 302(A).
50 
See, US General Accounting Office, above n 7.
51 
See, eg, Australia Refugee Review Tribunal decisions N05/50475 [2005] RRTA 387 (24 Feb
2005); 071283924 [2007] RRTA 98 (29 May 2007); 071467520 [2007] RRTA 161 (9 Aug 2007);
0905298 [2009] RRTA 1069 (13 Nov 2009), and 0905614 [2009] RRTA 1009 (19 Oct 2009). Tribunal
decisions are available at <http://www.austlii.edu.au/au/cases/cth/RRTA/>.
 North Korean Asylum Seekers and Dual Nationality 803
the Convention, as modified in its application to Australia by s 91R of the
Act. Each of them is “outside the country of his nationality”, that is to say
North Korea’.52
Despite receiving refugee status, the applicants in these cases were
denied protection, however, due to the Tribunals’ use of the principle of
effective third country protection. Australian Tribunals found that North
Korean escapees had the right to enter and reside in South Korea, and
according to s 36(3) of the Migration Act,53 Australia only owes protection
to refugees who have taken ‘all possible steps’ to avail themselves of any

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rights to enter and reside in a third country.54 Thus, prior to 2010, Refugee
Review Tribunals regularly rejected North Korean asylum claims by find-
ing that the claimants had not taken all possible steps to avail themselves
of the right to enter and reside in South Korea. Claimants in some cases
argued that they would be subject to persecution of some sort in South
Korea as well, which would therefore not be able to provide effective third
country protection, but these arguments were rejected.55
More recently, however, Australian Tribunals have adopted a new
rationale for denying asylum to North Korean escapees: dual nationality.
Since September 2010, Refugee Review Tribunals have regularly claimed
that North Korean asylum applicants are, in fact, already South Korean
nationals, and therefore do not meet the criteria for being considered refu-
gees under article 1(A)(2) of the Refugee Convention. While the practical
effect for the claimant may be the same as before, the legal result is differ-
ent: instead of their visa application being denied, it is deemed invalid and
cannot be considered, unless the Minister for Immigration and Citizenship
gives written notice that section 91P of the Migration Act does not apply
and a visa application is made in the following seven days.56
In order to reach this conclusion that North Korean escapees are already
South Korean nationals, Tribunals have relied upon a textual analysis of
the South Korean Constitution and Nationality Act, along with statements

52 
NBLC; NBLB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 272 (23
Dec 2005), para 44.
53 
Migration Act 1958 (Cth) (Migration Act).
54 
See, 0905614 [2009] RRTA 1009, above n 51, para 63; 0905298 [2009] RRTA 1069, above n
51, para 49. Australia’s liberal use of the effective third country protection principle has often been
criticized for turning away people in need, and many scholars advocate much stricter limitations on
the circumstances in which refugees can be refused asylum because another country offers effective
protection. See, eg, S Kneebone, ‘The Pacific Plan: The Provision of “Effective Protection”?’ (2006)
18 IJRL 696–721; A Hardaway, ‘Safe Third Countries in Australian Refugee Law: NAGV v Minister
for Immigration and Multicultural Affairs’ (2005) 27 Sydney L Rev 727–41, 741 (‘[t]here is an obvious
“meanness” inherent in provisions, which may exclude entire groups of people from seeking asylum
in Australia; or which may force asylum seekers to obtain refuge in countries with which they have no
connection; or which may, in practice, see asylum seekers indefinitely detained.’)
55 
See, 0905614 [2009] RRTA 1009, above n 51, paras 68–71; 0905298 [2009] RRTA 1069, above
n 51, paras 51–3.
56 
0909449 [2010] RRTA 763, above n 29, para 7.
804 Andrew Wolman
from South Korean government contacts and expert evidence prepared
by South Korean scholars and law firms. In many cases, the Tribunal gave
particular importance to Yonsei University Professor Chulwoo Lee’s state-
ment that ‘[a] North Korean is not granted South Korean citizenship. S/
he is already a national (citizen) of the Republic of Korea under the law of
the Republic of Korea’.57 Some opinions have also looked comparatively
at how other countries treat North Korean escapees, speculating (inaccu-
rately) that the existence of the US North Korean Human Rights Act is an
indication that US authorities also accept that North Korean escapees are

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nationals of both North and South Korea.58
Although Refugee Review Tribunals opinions have often discussed in
some depth whether North Korean escapees in fact have a right to enter
South Korea, the question has not been relevant for the legal analysis.59
In fact, Tribunals have conspicuously avoided undertaking any effec-
tive nationality analysis, asserting that they are statutorily prohibited
from doing so due to section 91N(6) of the revised Migration Act, which
expressly requires that ‘nationality must be determined solely by reference
to the law of the relevant country, and not by reference to any assessment
of the effectiveness of such nationality’.60

4.2 Canada
In Canada, on the other hand, the recent opinion in Kim v Canada took a
very different approach to dual nationality. The claimants in this case were
a North Korean woman and her son who had fled from North Korea to
China because the mother had been shunned in North Korea due to her
status as a single mother of a mixed race (half-Chinese ethnicity) child.61
After suffering hardships in China, the applicants fled to Canada.62 The
only disputed issue in the case was South Korean nationality; in the words
of the judge, ‘to return the Applicants to North Korea is unthinkable. Even

57 
ibid, para 74; 1000331 [2010] RRTA 932, above n 30, para 90; 0909118 [2010] RRTA 1054 (24
Nov 2010), para 92.
58 
See, 0909449 [2010] RRTA 763, above n 29, paras 76–7; 1000331 [2010] RRTA 932, above n
30, paras 67–8. In fact, according to the House Report that accompanied the legislation, this provision
of the North Korean Human Rights Act did not alter existing law, but rather ‘put to rest the erroneous
opinion (proposed by some State Department personnel) that, because North Koreans may be able to
claim citizenship if and when they relocate to South Korea, they must be regarded as South Koreans
for US refugee and asylum purposes, irrespective of whether they are able or willing to relocate to
South Korea’. HR Rep No 108–478(I), 22 (2004), as reprinted in 2004 USCCAN 1186, 1196.
59 
0909449 [2010] RRTA 763, above n 29, para 93 (‘The concept of a right to enter and reside plays
no part in s.91N(1)’).
60 
Migration Act, s 91N(6) (‘[f]or the purposes of this provision, the question of whether a non-
citizen is a national of a particular country must be determined solely by reference to the law of that
country’, although the Minister for Immigration and Citizenship may still grant asylum upon finding
that it is in the public interest to do so.)
61 
Kim v Canada, above n 35, para 2.
62 
ibid, para 3.
 North Korean Asylum Seekers and Dual Nationality 805
to return to China would expose the Applicants to great hardship and
social marginalization’.63
First, the judge decided that the correct test of dual nationality was
whether it was ‘within the control of the applicant to acquire the citizen-
ship’ of the second country.64 The court chose not to address whether citi-
zenship (a term that it uses instead of and, presumably, synonymously with
‘nationality’) automatically applied to North Koreans from their birth, as
suggested by the plain language of the South Korean Nationality Act, but
instead assumed that citizenship only came upon receiving ‘protection’

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through the Protection Act.65 It then examined conflicting evidence as to
whether it was within the control of North Korean escapees to receive
South Korean citizenship/protection.
On the one hand, it found that the US Department of State’s Country
Reports on Human Rights Practices for 2007 and a 19 February 2007
New York Times article concluded that North Koreans were entitled to cit-
izenship. On the other hand, it cited a UNHCR assessment that expressed
doubt as to whether all North Koreans would automatically receive South
Korean citizenship, along with a South Korean embassy official’s state-
ment that North Korean escapees must present themselves at a South
Korean embassy or consulate and demonstrate that they have the will and
desire to live in South Korea in order to qualify for citizenship, and that
certain individuals are ineligible, namely ‘“bogus” defectors; persons who
have resided in a third country for an extended period of time; and inter-
national criminals such as persons who have committed murder, aircraft
hijacking, drug trafficking or terrorism’.66 The court concluded that:
it is by no means clear that these particular Applicants will, in the circumstances
of their case, automatically be given South Korean citizenship or that the acquisi-
tion of such citizenship is entirely within their control. There are considerations
as to the ‘will and desire’ to live in South Korea that must be assessed by some
official and perhaps the courts there as well as consideration given to the length of
time that the Applicants have resided in China and Canada. There is no certainty
as to the outcome.67
Thus, the court returned the application for redetermination by a different
member of the Immigration and Refugee Board.68
The court did not explain its choice to ignore the fact that, under a
plain reading of South Korean law, it seems clear that North Koreans usu-
ally possess South Korean nationality from birth. Rather, it appeared to

63 
ibid, para 4.
64 
ibid, para 22.
65 
ibid, para 19.
66 
ibid, para 15.
67 
ibid, para 19.
68 
ibid, para 1.
806 Andrew Wolman
implicitly define citizenship as right of entry (as granted by the Protection
Act). While there may well be credible legal justifications for stressing right
of entry as the most important operative concept in this situation, espe-
cially if one adopts an ‘effective nationality’ approach, the court failed to
justify its assumption that North Korean escapees should not automatically
be considered South Korean citizens.

4.3  United Kingdom

In the UK, the Upper Tribunal (Immigration and Asylum Chamber)

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recently addressed jointly three asylum applications from North Korean
escapees in KK and Ors. For each appellant, the Secretary of State had
initially rejected the individual’s claim to be from North Korea and served
notices of intended removal.69 The appellants appealed to Immigration
Judges, who found that the appellants were in fact North Korean nation-
als, but that they also had South Korean nationality, and that their removal
to South Korea would therefore not put the UK in violation of any of its
international obligations.70 The appellants sought and received an order
of reconsideration, leading the Upper Tribunal of the Immigration and
Asylum Chamber to hear the cases jointly on appeal.71 The Tribunal chose
to issue Country Guidance with their decision regarding the general cir-
cumstances in which North Koreans are nationals of South Korea.72
As a starting point, the Tribunal accepted that it was undisputed that the
appellants were North Korean nationals, and that they would face perse-
cution in that country – indeed, the Tribunal stated that ‘citizens of North
Korea who have left North Korea may have relatively little difficulty in
establishing a well-founded fear of persecution there’.73 Thus, the Tribunal
concentrated its analysis on the issue of dual nationality, and specifically
addressed three separate questions:
1) whether an individual should be consider to be ‘of ’ a nationality for the pur-
poses of article 1A(2) of the Refugee Convention if that person:
‘(i) is (already) of that nationality;
(ii) is not of that nationality but is entitled to acquire it; and
(iii) is not of that nationality but may be able to acquire it’;
2) how nationality is determined; and

69 
KK and ors, above n 17 at para 7.
70 
ibid
71 
ibid.
72 
ibid, para 1. Country Guidances refer to rulings of the First-tier and Upper Tribunals (Immigration
and Asylum Chamber) that are intended to provide ‘comprehensive and generic guidance concerning
the general circumstances, or the circumstances for a group of people with a particular characteristic,
in a particular country’. R Thomas, ‘Report on a Roundtable Seminar: “Asylum Adjudication and
Country Guidance: Function, Operation, and Future”‘ (2010) 22 IJRL 336–9, 336.
73 
KK and ors, above n 17, para 6.
 North Korean Asylum Seekers and Dual Nationality 807
3) whether North Korean asylum seekers in general, and the appellants in
particular, possessed either South Korean nationality or an entitlement to
acquire it.74
As for the first question, the Tribunal held that, in the context of the Refugee
Convention, a person should be considered to possess a dual national-
ity if he or she is already of that nationality or is entitled to acquire it.75
However, if the appellant is not presently a national and ‘may be refused
nationality’, then he or she is not to be treated as being a dual national.76
The Tribunal noted that if ‘there is evidence that the grant of nationality

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is a matter of discretion, it is not easy to see why a refugee claimant should
be regarded, to his disadvantage, as having a nationality that he does not
possess and may never possess’.77
The Tribunal then addressed the question of how nationality should be
evaluated, and concluded that the existence of nationality is entirely a mat-
ter of the law of the granting state.78 It cited the 1930 Hague Convention
on Certain Questions Relating to the Conflict of Nationality Laws (Hague
Convention) and the Nottebohm Case for authority, although in fact they took
a more nuanced view.79 The Tribunal denied the applicability of the prin-
ciple of effective nationality, stating that ‘for the purposes of the Refugee
Convention, where a person already has a nationality (even if he has no
documents to that effect) that is the end of the matter: he is a national of
the country concerned’.80
The Tribunal next addressed the question of whether North Korean
escapees possess South Korean nationality, relying on a thorough analysis

74 
ibid, para 79.
75 
ibid, para 82 (if an asylum seeker is ‘entitled to nationality, subject only to his making an applica-
tion for it, he is also to be regarded as a national of the country concerned’).
76 
ibid, para 90.
77 
ibid, para 83.
78 
ibid, para 59 (‘Whether a person is a national of any particular state is a matter for the law of that
state. So far as we are aware, that proposition is uncontroversial.’).
79 
In the Nottebohm Case, the ICJ ruled that while each state may determine its own domestic nation-
ality laws, where that state attempts to extend diplomatic protection to a national, other states should
only recognize that nationality where there exists a ‘genuine link’ between the individual and the state.
Nottebohm Case, (second phase), judgment of 6 Apr 1955, ICJ Reports, 21–3. The ICJ characterized a
genuine link as ‘a legal bond having as its basis a social fact of attachment, a genuine connection of exis-
tence, interests and sentiments, together with the existence of reciprocal rights and duties’, ibid, 23. The
Nottebohm Case was decided in the specific context of diplomatic protection, however, and the extension
of its holding to other branches of international law has been controversial. See, R Sloane, ‘Breaking
the Genuine Link: The Contemporary International Regulation of Nationality’ (2009) 50 Harvard
Int LJ 1–60. Meanwhile, the Hague Convention (which never entered into force) stipulated that ques-
tions regarding ‘whether a person possesses the nationality of a particular State shall be determined in
accordance with the law of the State’. Convention on Certain Questions Relating to the Conflict of
Nationality Laws, 12 Apr 1930, 179 LNTS 89, art 2. A state’s ascription of nationality in its domestic
law ‘shall be recognized by other States in so far as it is consistent with international conventions, inter-
national custom, and the principles of law generally recognized with regard to nationality’, ibid, art 1.
80 
KK and ors, above n 17, para 82. See also ibid, para 90(1)(c) (‘there is no separate concept of “effec-
tive” nationality; the issue is the availability of protection in the country in question’).
808 Andrew Wolman
of South Korean law and practice, along with evidence from experts, the
South Korean Embassy in London, and South Korean lawyers. There
was a basic consensus from the sources surveyed that North Korean
members of North Korean ancestral families are all generally consid-
ered South Korean nationals, from birth, under South Korean domestic
law.81 The Tribunal thus judged that most North Korean asylum seek-
ers already possess South Korean nationality, and so held as part of its
Country Guidance.82
Apart from its discussion on nationality, the Tribunal touched upon the

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separate question of whether North Korean escapees have a right to enter
South Korea. It examined evidence of South Korean practice, much of
which seemed to show that right of entry was not automatic for all escap-
ees.83 Nevertheless, the Tribunal was not convinced that such doubts were
valid, and concluded that that the right to enter was in practice available
for North Korean escapees.84 Thus, the follow-up question of how the lack
of a right of entry would affect an asylum determination was not squarely
addressed. However, the Tribunal noted in dicta that the issue could be
dealt with as part of the question of whether a fear of persecution exists in
the country of dual nationality, and that:
a country of nationality which is not itself a country of persecution may neverthe-
less be a country in which the applicant has a ‘valid reason based on well-founded
fear’ for not availing himself of its protection. If the result of his availing himself
of the protection of that country is that he will find himself (for one reason or
another) returned to the country in which he fears persecution, that would appear
to be such a reason.85
The Tribunal finally turned its attention to the three appellants, each of
whom had lived in China for over ten years. In examining separately the
evidence pertaining to their specific circumstances, the Tribunal con-
cluded that the weight of the evidence showed that individuals who had
been outside North Korea for over ten years would not be allowed to enter

81 
ibid, para 74.
82 
ibid, para 90(2)(b).
83 
The South Korean embassy to the UK, while avoiding mention of nationality, stated that while
South Korea in principle allows entry to all North Korean defectors who express of their own free
will a willingness to resettle in South Korea, in practice it denies entry to certain exceptional cases,
examples including spies, drug dealers, terrorists, or other serious criminals. ibid, para 28. Bluth stated
that South Korean admission proceedings were even more restrictive than would be apparent from the
Nationality Act or Protection Act, and that in fact ‘the manner in which the South Korean authori-
ties approach this “entitlement” to ROK citizenships has been to adopt a very selective approach to
refugees and discourage defections as much as possible’, ibid, para 35.
84 
ibid, para 73 (‘In the absence of clear evidence tending to show that North Koreans who actually
seek to settle in South Korea will not be recognised as South Korean nationals in accordance with
national law, we have no reason to suppose that South Korea will not comply with its own law and its
international obligations in such cases’).
85 
ibid, para 67.
 North Korean Asylum Seekers and Dual Nationality 809
South Korea. The Tribunal dealt with this dilemma by asserting that
86

South Korean law does not generally permit dual nationality and South
Korean practice displays a presumption that those who have been absent
from the Korean Peninsula for more than ten years have in fact lost their
South Korean nationality through the acquisition of a second (non-North
or South Korean) nationality.87 Thus, according to South Korean law the
three appellants are no longer South Korean nationals and should be con-
sidered refugees.
There are a few problems with this analysis, however. First, by looking at

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South Korean practice (and calling it law), the court appears to be smug-
gling an effective nationality analysis in through the back door.88 Second,
the court relied on outdated information in its claim that South Korea
does not generally permit dual nationality. A revised dual nationality law
entered into force in January 2011, and the possession of a second nation-
ality is now allowed in many circumstances, although not when an adult
voluntarily naturalizes in a third country.89 Third, it would be illogical for
the South Korean government to presume that North Korean escapees
have acquired a second nationality after ten years in China when such a
presumption is demonstrably false.90 In fact, China does not generally con-
fer nationality on North Korean escapees after a certain period of time,
and the South Korean authorities are no doubt aware of this.

5.  Effective nationality

From the perspective of international refugee law, what is perhaps most
interesting about the cases discussed above is the fact that none of them
explicitly embrace the principle of effective nationality. In the context of a
refugee determination, an effective nationality analysis examines whether
a purported second nationality is effective rather than merely formal. The
nationality will, generally, be considered effective when it affords the asy-
lum seeker the right to enter and reside within that state’s borders.91 If
nationality is not effective, then the asylum seeker will not be considered a
dual national for the purposes of article 1(A)(2) of the Refugee Convention.

86 
ibid, para 86.
87 
ibid.
88 
The Tribunal justifies its approach by stating that ‘clear evidence as to national practice may be of
importance in determining the content of provisions of national law’, ibid, para 60. This is a particu-
larly unsatisfying means of statutory interpretation. By its plain language, the Nationality Act clearly
applies regardless of time spent outside of the country, and the statute’s meaning is not changed by the
government’s choices regarding recognition policy.
89 
Nationality Act, Act No 8892 (14 Mar 2008), last amended by Act No 10275 (4 May 2010).
90 
See, eg, Human Rights Watch, ‘Denied Status, Denied Education: Children of North Korean
Women in China’ (Apr 2008).
91 
The Australian Lay Kon Tji case is the one notable exception that interprets ‘effectiveness’ as
encompassing a broader set of rights concerns. Lay Kon Tji v Minister for Immigration and Ethnic Affairs
[1998] 1380 FCA.
810 Andrew Wolman
The use of effective nationality analysis is promoted most prominently
in the UNHCR Handbook, which states that:
In examining the case of an applicant with dual or multiple nationality, it is neces-
sary, however, to distinguish between the possession of a nationality in the legal
sense and the availability of protection by the country concerned. There will be
cases where the applicant has the nationality of a country in regard to which he
alleges no fear, but such nationality may be deemed to be ineffective as it does
not entail the protection normally granted to nationals. In such circumstances,
the possession of the second nationality would not be inconsistent with refugee

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status. As a rule, there should have been a request for, and a refusal of, protection
before it can be established that a given nationality is ineffective. If there is no
explicit refusal of protection, absence of a reply within reasonable time may be
considered a refusal.92
Effective nationality analysis is also embraced by respected scholars of
international refugee law. Goodwin-Gill states that:
[i]n cases of dual or multiple nationality, refugee status will only arise when the
individual in question is unable or unwilling, on the basis of well-founded fear, to
secure the protection of any of the States of nationality. In this context, whether
the link of nationality is effective in the sense of general international law will be
a relevant consideration.93
Similarly, according to Hathaway, ‘[t]he major caveat to the principle of
deferring to protection by a state of citizenship is the need to ensure effec-
tive, rather than merely formal, nationality’.94
Effective nationality analyses have at times been used by courts to evalu-
ate whether an asylum seeker possesses dual nationality. Most prominent
are a set of Australian cases from the late nineties addressing whether East
Timorese asylum seekers could be considered dual nationals if they were
formally Portuguese nationals but lacked the right to reside in Portugal.95

92 
UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the
1951 Convention and the 1967 Protocol relating to the Status of Refugees’, UN doc HCR/IP/4/
Eng/REV.1, 1979, re-edited Jan 1992, para 107.
93 
GS Goodwin-Gill and J McAdam, The Refugee in International Law (2007), 67.
94 
J Hathaway, The Law of Refugee Status (1991), 59 (emphasis in original). The principle of effective
nationality has been similarly accepted by several other scholars in this context. See, eg, R Piotrowicz,
‘Lay Kon Tji v Minister for Immigration and Ethnic Affairs: The Function and Meaning of Effective
Nationality in the Assessment of Applications for Asylum’ (1999) 11 IJRL 544–56, 553; M Foster,
‘Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another
State’ (2007) 28 Mich J Int L 223–86, 231.
95 
See, Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 143 Australian Law Reports
695; Lay Kon Tji case, above note 91; and “SRPP” and Minister for Immigration and Multicultural Affairs
[2000] AATA 878. Also see, Refugee Review Tribunal Decisions V93/00971 [1995] RRTA 1112 (18
May 1995); V93/01000 [1995] RRTA 1190 (29 May 1995); N94/02698 [1995] RRTA 1744 (28 July
1995); N93/00952 [1996] RRTA 220 (7 Feb 1996), and N93/00512 [1997] RRTA 2121 (30 May
1997). This line of cases is discussed, inter alia, in Piotrowicz, above n 94, and R Piotrowicz, ‘Refugee
Status and Multiple Nationality in the Indonesian Archipelago: Is there a Timor Gap?’ (1996) 8 IJRL
319–46.
 North Korean Asylum Seekers and Dual Nationality 811
The New Zealand Refugee Status Appeals Authority has also used effec-
tive nationality analyses to evaluate potential dual nationalities.96 However,
in other countries, judges have been more reluctant to embrace an effec-
tive nationality analysis. In addition to the cases described above, there are
a number of alternative techniques that judges have used to address dual
nationality in the refugee context, including the use of a ‘genuine links’
analysis, stemming from the International Court of Justice’s well-known
Nottebohm case,97 and the evaluation of a dual national’s right of entry in
the context of the possible existence of persecution.98

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In the context of North Korean asylum seekers, an effective nationality
analysis would be complicated by the opaque nature of South Korea’s poli-
cies toward North Korean escapees. As described above, there are conflict-
ing reports of the circumstances in which North Korean escapees will or
will not be given a right of entry. Based on the existing evidence, however,
it seems fair to consider South Korean nationality ineffective in two differ-
ent situations. First, South Korean nationality should be considered inef-
fective where the South Korean authorities explicitly deny North Korean
asylum seekers permission to enter South Korea (that is, by refusing to sup-
ply an entry visa or passport), or fail to respond to such requests within a
reasonable amount of time, as happens regularly in China and is alleged to
happen sometimes elsewhere.99 Second, it seems fair to conclude that when
the asylum seeker can show that he or she has a non-Korean parent, or is
covered by one of the article 9 exceptions of the Protection Act, then the
right of entry to South Korea would be questionable at best, and national-
ity should be presumed ineffective. It should be recalled that the case law
is fairly clear that an individual should not be considered a dual national
if he or she has a mere possibility of obtaining a second nationality, at the
discretion of the granting country. Analogously, an asylum seeker’s formal

96 
See, Refugee Appeal No 75694 (24 May 2006), para 33; Refugee Appeal No 71322/99 (19 Sept
2000), paras 20–6; Refugee Appeal No 2067/94 (4 Jul 1996), paras 10–11.
97 
Nottebohm, above n 79, 23. While Nottebohm dealt with the recognition of nationality in the context
of diplomatic protection, its holding has, controversially, been extended to other legal contexts as well.
Examples of the use of genuine links analysis to evaluate the purported dual nationality of an asylum
seeker include, [1996] CRDD No 17 (No T94-01251) [Canada] (finding that despite the Israeli Law
of Return’s statement that all Jews have the right to come to Israel, the claimants lack ‘the connection
with the State of Israel to make them nationals of Israel’), and Australia Refugee Review Tribunal
Decision N93/00294 [1995] RRTA 2661 (29 Nov 1995) (‘The correct approach to assessing a person’s
nationality is by reference to the municipal laws of the relevant State ... However the Tribunal also
accepts that the nationality conferred by a State may not be recognised where there is no “genuine
connection” between the person and the State’).
98 
MA (Ethiopia) v Secretary of State for the Home Department, [2009] EWCA Civ 289, UK: Court of
Appeal (England and Wales), 2 Apr 2009 (Elias, LJ), 43 (‘the fact that it may, for example, prove to be
impossible in practice to return someone seeking asylum has no relevance to the determination of their
refugee status. But where the applicant contends that the denial of the right to return is part of the per-
secution itself, the Tribunal must engage with that question’). See also, KK and ors, above n 17, para 67.
99 
See, UNHCR Handbook, above n 92, para 107.
812 Andrew Wolman
nationality should be considered ineffective if he or she only has a mere
possibility of obtaining permission to enter the country, at the discretion
of the granting state.
For North Korean escapees that do not fall into either of these cat-
egories, best evidence suggests that South Korean nationality is effective.
Pending approval of their application, these individuals are entitled to
settle in South Korea under the terms of the Protection Act (and they are,
from birth, South Korean nationals). While they can certainly be given
protection in third countries, as is currently the practice in the US, this

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would not be required under the Refugee Convention.
It is also fair to conclude that the Refugee Convention does not require
that protection be given to a North Korean escapee who possesses effec-
tive South Korean nationality but professes a lack of ‘will and desire’ to
settle there. The Refugee Convention prioritizes national protection over
international protection, and at no point implies that individuals should be
considered refugees if they lack the desire to go to their country of nation-
ality.100 In addition, ‘will and desire’ is impossible to objectively measure.
To a certain extent, it can be presumed that North Korean asylum seekers
do not have a strong desire to live in South Korea: if they did, they would
be applying for South Korean protection instead of asylum elsewhere.101
However, this does not mean that North Korean asylum seekers would be
forced to lie when questioned by South Korean officials after a denial of
their third country asylum application. If at that point they do not have
the will and desire to settle in South Korea, they could agree to be repa-
triated to North Korea (as the South Korean government has shown a
willingness to do with numerous accidental migrants, mainly fishermen,
who drift south of the Line of Control but do not wish to settle in South
Korea). Presumably, however, most escapees will honestly profess the ‘will
and desire’ to settle in South Korea if given that choice.
The cases described in this article all reject the effective nationality
approach, despite its widespread academic acceptance and analytic appeal.
In Australia, the use of effective nationality analysis in evaluating the pos-
sible dual nationalities of asylum seekers was prohibited under domestic
law in 1999.102 The passage of the amendment creating this prohibition
was a reaction to the holding in Lay Kon Tji that, in order to be effective, a

100 
See, eg, ibid, para 106; Hathaway, above n 94, 57 (‘It is an underlying assumption of refugee law
that wherever available, national protection takes precedence over international protection.’).
101 
This was the position taken by the South Korean Embassy in the UK in a letter to the Tribunal
in KK and Ors, above n 17, para 28 (‘The first and most important criterion in the determination of
offering protection and settlement support to North Koreans is to ascertain whether the person in
question desires to live in the Republic of Korea … As such, the protection of the Government of the
Republic of Korea for North Koreans does not apply to those North Koreans who wish to seek asylum
in a country other than the Republic of Korea.’)
102 
Border Protection Legislation Amendment Act 1999, Schedule 1, Item 70.
 North Korean Asylum Seekers and Dual Nationality 813
second nationality had to guarantee the asylum seeker the same rights as
other nationals enjoyed, including personal liberty, personal security, and
private property rights.103 The amendment was an overreaction, however,
both legally and as a matter of policy. While the Lay Kon Tji decision may
have been a misguided expansion of the concept of effective nationality,
that does not mean that the principle itself – when properly understood
as an evaluation of right of entry – should have also been dismissed. As
long as this statutory prohibition remains in place, it will be difficult for
Australia to be fully compliant with its Refugee Convention obligations

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with regards to North Korean escapees.
In Canada and the UK, however, asylum jurisprudence has no such
statutory restrictions, and it is disappointing that effective nationality anal-
yses were not undertaken. The alternative analytical frameworks were in
each case unclear as to the relevance of right of entry, and the holdings
relied on what might generously be termed legal fictions (in KK and Ors, the
fiction that a North Korean escapee loses his or her South Korean nation-
ality after passing ten years outside of North Korea, and, in Kim v Canada,
the fiction that South Korean citizenship is conferred by the Protection Act
rather than the Nationality Act).

6. Conclusion
This article surveys recent cases from three jurisdictions dealing with
North Korean asylum seekers, each of which utilized idiosyncratic and at
times strained analyses to address the existence or non-existence of dual
nationality. A more appropriate approach would analyze whether or not
South Korean nationality is ‘effective’. Nevertheless, the cases discussed do
at least provide some guidance for prospective asylum seekers from North
Korea: namely, that Australia will not generally give asylum to North
Korean escapees; that the UK will provide asylum only for those who have
been outside of North Korea for over ten years, and that Canada will
likely provide asylum for individuals who fit within any of the categories of
exceptions to the Protection Act. Of course, there is little chance of any of
these countries deporting a failed asylum seeker to either North Korea or
China (the most common transit country). Rather, the most probable out-
come for a failed asylum seeker would be deportation to South Korea (per-
haps after diplomatic pressure is applied on the South Korean government
to permit entry) or the granting of some form of temporary admission,
lacking in rights and involving considerable uncertainty for the escapee.
Moving forward, it bears noting that refugee determinations for North
Korean asylum seekers would also be facilitated by greater openness and

103 
Piotrowicz, above n 94, 555 (claiming that Lay Kon Tji dangerously widened Australia’s protection
requirement).
814 Andrew Wolman
clarity on the part of the South Korean government. As things currently
stand, there is considerable uncertainty as to exactly when North Koreans
are denied entry to South Korea. Denials of protection should be put into
writing, and the Protection Act should be revised to clarify the criteria for
obtaining the right of entry. The South Korean government should also
specify the differences in rights possessed by North Koreans who have not
yet obtained protection under the Protection Act, versus the rights of other
South Korean nationals.

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