Korean Peninsula: “up against a brick wall”

Secretary of State for the Home Department v SP (North Korea) & Ors [2012] EWCA Civ 114 (16 February 2012)

The Korean War (1950 – 1953), an historic first instance example of the Cold War getting hot, was a defining confrontation between the United States of America and the former Soviet Union. Earlier on, three-and-a-half decades of oppressive Japanese colonialism (1910 – 1945) stampeded every aspect of Korean culture, language and society. During World War II, the Japanese used Koreans as comfort women and soldiers. Since then, Japan has expressed some regret for its actions. Comparatively, however, amity between the two Koreas has not been achieved and the Korean Demilitarised Zone (along the 38th Parallel) established in 1953 serves as the international boundary between the two rival nations.

On any view, the North Korean regime’s pursuit of nuclear weapons at the cost of starving its impoverished population, or at any other cost, is condemnable. After Kim Jong il’s death, optimists can only share Foreign Secretary William Hague’s hope that North Korea is at a “turning point”.

South Korea’s constitution defines the county’s territory as “the Korean Peninsula and its adjacent islands” and it is the duty of the state to “protect its citizens residing abroad”. Under South Korean law dual nationality is not allowed – North Korean nationality is “ignored” – but a person is deemed to acquire nationality of the “Republic of Korea” by “birth” where (i) either parent was a national of the republic at the time of the person’s birth;(ii) their father was a national at the time of death; or (iii) their parents were unknown or have no nationality and the person was born in the republic’s territory. Other legislation (“the Protection Act”) ensured that South Korea should help – “in all spheres of their lives” – those fleeing the North; but this does not apply where a long time, more than ten years, has been spent in a third country.

In the present case the Court of Appeal (Maurice Kay, McFarlane and Davis LJJ) unanimously dismissed the Secretary of State for the Home Department’s appeals against the Upper Tribunal’s country guidance decision in KK and others (Nationality: North Korea) Korea CG [2011] UKUT 92 (IAC).

The three respondents (SP, SC and KK) are nationals of North Korea who arrived in the UK via China; SP and SC met in China, became partners and relocated to the UK claiming asylum in 2007. KK, who is not connected to SP and SC, did the same in 2008. While it was accepted that the respondents have/had have a well-founded fear of persecution in the event of being returned to North Korea, given South Korea’s constitution and other nationality provisions, the SSHD thought that the respondents could be safely removed to South Korea.

The SSHD’s case was that notwithstanding the fact that neither of the respondents had ever been to South Korea, pursuant to that country’s laws, they still acquired South Korean nationality at birth because the South did not recognise North Korean nationality at all. The respondents said the Seoul government no longer respected their historic claims to South Korean nationality and, therefore, they could not be removed to that country.

The Court, at para. 7, explained that although South Korean law entitled North Koreans to a right of nationality, South Korea’s government remained “defensive” in granting such entitlements because Chinese nationals of North Korean ethnicity sought to use the provisions for their own ends.

The Upper Tribunal (Vice President C M G Ockleton, and Senior Immigration Judge Gleeson: at paras. 91 – 92,) had concluded that despite the law, the respondents would not (automatically) benefit from South Korean nationality because they became North Korean nationals who would have to re-apply to re-acquire South Korean nationality. Accordingly, the Tribunal presumed that since the respondents had lived in a third country (China) for 10 years they had lost their South Korean nationality by birth. Thus, it followed that the respondents had only one nationality (North Korean) and it was common ground that they were refugees under the Geneva/Refugee Convention.

The SSHD’s grounds of appeal were, the Tribunal’s (i) decision/presumption that the respondents’ presence in another state (China) for 10 years excluded them from acquiring South Korean nationality was irrational/perverse; and (ii) assumption that the respondents were in fact North Korean, without first allowing the South Korean authorities to decide whether the respondents were entitled to the “Republic” of Korea’s nationality, was premature.

Firstly, the Court decided that the Tribunal’s was view not perverse or irrational. Rather, the references to a “presumption” were incidental to the task at hand. Quite simply, the Tribunal explained its findings based on the experts’ evidence in light of the constitutional provisions and nationality laws of South Korea; it was rational to find that a ten-year absence from North Korea would be treated by South Korea as losing nationality “by birth” because, during that time, a person could acquire another nationality.

Equally, even in the event a person did not acquire another nationality – or a right of residence in another country, “it was plain that South Korea did not take a mere assertion to that effect at face value “(at para. 23). The experts’ evidence – which had not been challenged by the SSHD – demonstrated that nationality applications by the respondents would fall to be refused (paras. 21-23). The evidence, reports from Professor Christoph Bluth, an expert on security and Mr In Ho Song, a lawyer practising in South Korea, confirmed that the respondents’ applications to the South Korean authorities were “most likely not to be granted” and that a favourable outcome was “almost impossible.”

Secondly, although the respondents had acted in good faith and did all that was reasonably practicable to be recognised as South Korean nationals, the Court decided that the South Korean authorities had not shown a readiness to acknowledge the respondents’ claims to nationality. The Court applied MA (Ethiopia) v SSHD [2009] EWCA Civ 289 – where, by pretending to be Eritrean, an Ethiopian national had mislead the Ethiopian Embassy – and noted that the respondents, who had acted bona fide, were (per Elias LJ’s para. 49 description) “up against a brick wall”.

In KK’s case, she and her solicitor were told by the South Korean Embassy that no real consideration will be given to her case before her asylum claim has been finally determined. SP and SC, the first and second respondents, were informed that time spent in a third country “would affect whether the applicant can still be classified as a [North Korean] defector”. In light of this, the Court affirmed the experts’ evidence that the respondents’ prospects of getting recognition “as North Korean defectors with retained South Korean nationality being most unlikely or almost impossible” (para. 28, emphasis supplied).

Maurice Kay LJ explained further at para. 29:

Two points arise from this. First, in terms of MA (Ethiopia), the appellants have acted bona fide and taken all reasonably practicable steps to seek to obtain the requisite documents to enable them to be recognised as nationals of South Korea. Secondly, they instituted appeals which, in principle, fell to be determined in accordance with all the circumstances at the time of the hearing in the Tribunal. It seems to me that, in the light of all this, the Tribunal was entitled to reach the conclusions it reached at the time when it reached them. Mr Manjit Gill [Q.C.] makes a further point which also has some significance. Faced with these cases, the Secretary of State did little on a diplomatic level to try to force the issue with the Embassy. On the evidence, all that was done was to write a last minute letter which, in the event, asked the wrong question, focusing on the Protection Act. No adjournment was sought. This approach left the Tribunal to determine the cases on the material before it which, in my judgment, justified the conclusions. They were, in MA (Ethiopia) terms, “brick wall” cases which the appellants were entitled to have determined in the light of current circumstances.

At para. 31, the Court noted that the respondents could not avail themselves to the protection of South Korea. Hence, they were entitled to have their claims determined in light of the evidence.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Asylum, Court of Appeal, Korean Peninsula, Nationality, Refugee Convention, Tribunals and tagged , , , , . Bookmark the permalink.

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