I'm the 23 year old son of two Korean parents who were both and raised in South Korea and just recently denounced their Korean citizenship (about 5 years ago). They immigrated to the US before I was born and gave birth to me while they were still Korean citizens in the process of becoming U.S. citizens. They forgot to however claim me on their forms in South Korea as their son after I was born and just assumed everything was okay. Finally about a week ago they stated that I was not allowed back into Korea or else I would have to serve in the military because I was born before they became U.S. citizens and so technically I am still a Korean citizen and I hold dual citizenship.
Do I hold dual citizenship because my parents were still Korean citizens when I was born?
Before we begin, the Korean must give the usual caveat: The Korean is not an immigration attorney of Korea. This post is for broad informational purposes only. Do NOT ask him about your specific situation, because he cannot possibly give a competent answer that fits your situation. Immigration law and conscription law of Korea are complicated things, and you must consult an attorney if you are seriously worried about your situation.
Having said that...
Paul's is a situation that has been happening a lot lately. Although Paul's email did not ask this question directly, the natural follow-up question is: "Will I be drafted into Korean military? What steps can I take to avoid getting drafted if I visit Korea?" It may sound absurd that someone like Paul, who was born and raised in the U.S., may be conscripted into Korean military. But because of an odd and unintended combination of Korean laws, this is a distinct possibility.
Military service in Korea has always been an extremely sensitive social issue. Like the Social Security in the U.S., it may as well be called one of Korea's "third rail issue" -- touch it, and you die. Particularly among Korean men, there is a (justifiably) huge sense of sacrifice for devoting two to three years of the prime of youth to serve the country. Accordingly, the consequences for draft-dodgers are swift and harsh.
This issue began its course a decade ago. In 2002, popular singer/rapper Yoo Seung-Joon very publicly pledged that he would serve his military duty, then suddenly went back on his word. As a dual citizen between Korea and U.S., Yoo renounced his Korean citizenship to avoid getting drafted. Huge public uproar ensued, destroying Yoo's career and rendering him essentially a persona non grata in Korea. Finally in 2005, Korea's National Assembly passed a law that prohibited dual citizenship holders who were over 18 years plus three months of age (and therefore draft-eligible) from renouncing Korean citizenship. (The previous rule was that the dual citizen automatically lost his citizenship if he did not elect to stay as a Korean citizen before the age of 22.) There was a Constitutional Court challenge against this law, but the court found the law to be constitutional.
|If you are dealing with this issue, you can blame this guy |
The real problem began in 2010. In 2010, in an attempt to liberalize citizenship laws and make the lives easier for diaspora Koreans, the National Assembly began allowing dual citizenship. One condition for having a dual citizenship was that a dual citizenship holder must fulfill all his duties as a Korean citizen, and may not exercise the privileges afforded to non-Korean citizens. For our purpose, this means -- he must report to the draft, and cannot give the excuse that he is not a Korean citizen.
The unintended consequence of the 2010 law that, all of a sudden, it created a large number of Korean dual citizenship holders who did not even know that they were dual citizens. If you are a draft-eligible age, and you realized only recently that you were in fact a dual citizen, you cannot even renounce your Korean citizenship because of the 2005 law. The result: we have a messed up situation in which diaspora Koreans, who may have never visited Korea and not speak a lick of Korean, may be draft eligible for Korean military. He can enter Korea freely, but may get stopped at the airport on his way out of Korea, like all other draft-eligible male Korean citizens.
Unfortunately, there is no good way out of this. However unintended, this is how the law is today. If you have a non-Korean passport, you may simply be able to avoid detection and travel to Korea. But that will be more difficult to do if you, for example, stay in Korea for more than a month and attend a school or get a job. The only likely way this will change is through litigation, especially because it would be a political suicide for a Korean legislator to touch this issue. Until the situation is resolved differently, if you are a male between the ages of 18 and 37, born to parents who are/were Korean citizens, the Korean would highly recommend speaking with an attorney in Korea before you make a mid- to long-term stay in Korea.
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