North Korean Asylum Seekers in the West: Is Dual Nationality Dispositive?

Abstract

Since at least 2013, Western courts judging refugee cases have accepted that North Koreans are, with rare exceptions, considered to be South Korean nationals under South Korean law. This Article explores the implications of this holding. Given this dual nationality, are North Koreans necessarily refused refugee status because they can be protected in South Korea? Or are there still routes to refugeestatus that may be available? This Article finds that North Koreans continue to have potential paths forward in their search for refugee status in the West. There are, broadly speaking, four different types of protection arguments evident in the jurisprudence from major host states. These are: (1) that an asylum seeker possesses a well-founded fear of persecution in South Korea as well as NorthKorea; (2) that South Korean nationality does not provide a right to enter the country, and should therefore be disregarded; (3) that South Korean nationality should not be recognized because it is not bestowed in a manner consistent with international norms; and (4) that an individual asylum seeker falls into an exceptional category whereby he or she lacks South Korean nationality. Each ofthese arguments has proved successful in certain cases, at least provisionally.