A South Korean court has ruled that even if a person stayed abroad for more than two years before and after birth, it should still be considered birth tourism if the stay was not continuous throughout that period to acquire foreign nationality.
According to South Korea’s legal community on Monday, the Seoul Administrative Court’s Administrative Division 1 (Chief Judge Yang Sang Yun) ruled against a 22-year-old plaintiff, identified only as the individual in an administrative lawsuit against the head of the Seoul Southern Immigration Office. The individual was seeking to cancel the rejection of their nationality selection declaration.
The plaintiff, whose parents are both South Korean, was born in the United States in July 2003, automatically acquiring dual nationality from both South Korea and the U.S. Upon turning 21, the individual submitted a declaration of South Korean nationality selection along with the Foreign Nationality Non-Exercise Pledge in February last year.
The Foreign Nationality Non-Exercise Pledge allows dual nationals to retain South Korean nationality without renouncing their foreign nationality. Under the Nationality Act, individuals can submit a written pledge to the Ministry of Justice stating that they will not exercise their foreign nationality for purposes such as military service, taxation, criminal punishment, or admission to foreign schools, thus maintaining dual nationality.
However, the immigration office rejected the nationality selection report. They concluded that the plaintiff’s mother had engaged in birth tourism to secure dual nationality for her child despite having established residency in South Korea.
In response, the plaintiff filed an administrative lawsuit, arguing that their mother did not give birth in the U.S. to acquire dual nationality.
The plaintiff claimed that because their parents had stayed in the U.S. for more than two years before and after birth, they qualified for an exception under Article 17, Paragraph 3 of the Enforcement Decree of the Nationality Act. This provision exempts cases where parents stayed abroad for at least two years due to study or overseas work from being classified as birth tourism.
The plaintiff’s mother left for the U.S. on July 7, 2003, gave birth to the plaintiff on July 30, and returned to Korea with the child on August 20 of the same year. She resided in South Korea until leaving again for the U.S. in 2011, where she stayed for about four years until 2015.
However, the court sided with the immigration office. The judges ruled that the pre-and post-birth periods could not be arbitrarily combined to meet the requirement unless the parents continuously stayed overseas for two years.
Furthermore, the court noted that the plaintiff’s mother returned to Korea after giving birth and did not leave again until 2011. They deemed it reasonable to conclude that she had established her life in Korea and that her departure was not intended to secure foreign nationality for her child.
The court highlighted that simply staying abroad for over two years around the time of birth does not automatically qualify for the exception. Such an interpretation would undermine the legislative intent of preventing birth tourism and other legal loopholes.
Additionally, the court emphasized that “South Korea’s nationality law has traditionally adhered to a strict single-nationality principle, with a 2010 amendment allowing limited dual nationality. The Foreign Nationality Non-Exercise Pledge is not an inherent right that can be unconditionally claimed.”