[Legal Column] Nationality Issue of The Children Born Between Korean and Australian

Nationality Issue of The Children Born Between Korean and Australian

Hello, This is a lawyer Jung-woong Kim. I would like to briefly share some legal informations that I have recently been receiving frequent inquiries about.

1. Introduction

An important legal issue regarding international marriage between South Koreans and Australians is the nationality of the children.

It has become increasingly common for the children of Korean-Australian couples to lose their Korean nationality due to the acquisition of Australian citizenship by descent, as per Australian citizenship Act (Australian citizenship Act, Part 2, Division 1. Automatic acquisition Of Australian citizenship)’.

The resulting loss of Korean nationality, by the children of Korean and Australian couples often gives rise to  numerous legal problems with important psychological and financial implications.

 

2. Regulations of Australian Citizenship Act and Korean Nationality Act.

A) Australian Citizenship Act fundamentally follows conditional jus soli.

Under Australian citizenship Act, a person born in Australia who has at least one parent who is an Australian citizen or permanent resident of Australia acquires Australian citizenship by birth. Below is a summary of Australian citizenship Act provisions.

The most common and obvious way to become an Australian citizen is being born in Australia and have a parent who is an Australian citizen or a permanent resident at the time of your birth. 

Australian citizen is also automatically received if a child is born in Australia and is a resident in Australia for a period of 10 years beginning on the day of birth.

The less common pathways to Australian citizenship include: Citizenship by adoption under a law in force in a State or Territory, citizenship for abandoned children, citizenship by incorporation of Territory [Australian Citizenship Act, Part 2 – Australian citizenship, Division 1 - Automatic acquisition of Australian citizenship].

B) Nationality actof the Republic of Korea: 

 

The nationality lact of the Republic of Korea adopts the principle of descent. In other words, a person with at least one parent who is a nation of the Republic of Korea at the time of their birth acquires Korean nationality at the time of birth (Nationality Act, Article 2, Paragraph 1). This means that if one of the parents is a Korean nation, the child acquires Korean nationality automatically, regardless of the place of birth (even if he or she was born abroad).

3. Nationality Of Children From International Marriages Between Koreans And Australians

A) If the child was born in ‘Australia’

If eithet father or mother is an Australian citizen or permanent resident of Australia and the other is a Korean nation, and the child was born in Australia, the child is automatically a dual nationality person with both Australian citizenship and Korean nationalitiy(Article 2, Paragraph 1., Article 12 Paragraph 1 of the Nationality Act).

In this case, the child must select their nationality before turning 20. Males who chose to retain their Korean nationality will be transferred to the military preparation service pursuant to Article 8 of the Military Service Act before he turns 22.

B) If the child was born in ‘Korea’

 

If the child of an Australian-Korean couple was born in Korea, he or she is not an Australian citizen; they  have only Korean nationality. This is because Australian Citizenship Act is based on conditional nativism (the principle that only if a child is born in Australia with an Australian citizen parent, he or she can acquire Australian citizenship from the birth) [Australian Citizenship Act, Part 2, Division 1. Automatic acquisition of Australian citizenship].

C) Australian citizenship by descent

However, in case B) above, the child can acquire ‘Australian citizenship by descent’ based on Australian nationality act. If a child applies to ‘acquire Australian citizenship by descent’, the child will acquire Australian citizenship from the time the Australian Minister of Justice approves the application for citizenship acquisition; it is important to note that acquisition of Australian citizenship is not back-dated to the time of birth [Australian Citizenship Act, Part 2 –Australian citizenship, Division 2 - Acquisition of Australian citizenship by application, Subdivision A - Citizenship by descent]. 

There have been a lot of recent questions about legal issues related to this. The legal reason for the confusion is that the Australian Citizenship Act is a legal system that adopts the conditional birth principle, and the Korean nationality act is a legal system based on the principle of descent.

4. Legal Issues Arising From The Child’s Loss of Korean Nationality

A) Report of loss of nationality: 

Any person who has lost Korean nationality (excluding those who have reported renouncement of nationality pursuant to Article 14) must report loss of nationality to the Minister of Justice of the Republic of Korea (Nationality Act, Article 16, Paragraph 1).

B) Notice of loss of nationality: 

The Immigration Office of the Republic of Korea must then announce that the person has lost Korean nationality in the Official Gazette, in accordance with the provisions of Article 15 of the Nationality Act (Article 17, Paragraph 1 of the Nationality Act).

 

C) Changes in rights of persons who have lost nationality:

 

(1) No person who has lost the nationality of the Republic of Korea shall enjoy the rights afforded only to nationals of the Republic of Korea, from the time of such loss of nationality. (2) Where a person has attained transferable rights under paragraph (1) when he or she was a national of the Republic of Korea, he or she shall transfer them to a national of the Republic of Korea within three years, unless otherwise prescribed by Acts and subordinate statutes related to such rights.[Nationality act, Article 18]

D) Fraudulent use of passport:

Since the person is no longer a Korean nation, if they use a Korean passport after the date that they lost their nationality, it will be considered fraudulent use of a passport. Subsequently issued Korean passports will be considered “fraudulent” passports. Relevant punishments and fines will be issued accordingly.

 

E) Visa requirements:

Those who have lost their Korean nationality and wish to reside in Korea must register as an alien and obtain an Overseas Korean visa (F4).

 

F) Loss of child allowance and child support entitlement:  

They also lose the right to receive child support allowance from the month after Korean nationality was lost (Article 23-2, Paragraph 5 of the Enforcement Decree of the Infant Care Act). Again, if childcare expenses were paid incorrectly, the government or local government can recover all or part of the paid expenses (Article 40-2 of the Infant Care Act).

G) Loss of eligibility for National Health Insurance: 

Those who lose their Korean nationality lose their eligibility for National Health Insurance from the day after they lose their Korean nationality (Article 10 of the National Health Insurance Act). Therefore, if there are insurance benefits paid incorrectly, the National Health Insurance Corporation collects the paid insurance benefits as unfair profits (Article 57 of the National Health Insurance Act).

H) Loss of right to receive child support: 

Those who lose their Korean nationality are no longer eligible for National Health Insurance from the day after they lose their nationality (Article 10 of the National Health Insurance Act). Therefore, if insurance benefits were paid incorrectly, the National Health Insurance Corporation collects the paid insurance benefits as “unfair profits” (Article 57 of the National Health Insurance Act).

5. Frequently Asked Questions

A) Important things to note

A child with Korean and Australian parents is born in "Australia", he or she acquires both Korean nationality and  Australian citizenship from their birth. 

A child with Korean and Australian parents is born in "Korea", he or she acquires "only Korean nationality". he or she is not an Australian but a Korean. So, please note that if the child(with Korean and an Australian parents is born in Korea) applies to Australian authorities for Australian citizenship by descent,  he or she  will lose his Korean nationality because this is a Korean( he or she) voluntarily acquiring foreign nationality. The fundamental solution to this problem is a legal amendment to Australia's citizenship act or Korean nationality act.

B) Can I regain Korean Nationality after losing Korean Nationality ?

Foreigners who were nation of the Republic of Korea may acquire Korean nationality by obtaining nationality restoration permission from the Minister of Justice (Article 9 of the Nationality Act).

C) Can I contest the loss of Korean nationality through a lawsuit?

This issue cannot be addressed uniformly because everyone’s circumstances are different. If you send me a detailed outline of your situation via email(woongaro@gmail.com), I can provide in-depth consultation. 

 

6. Closing

After more research, I will post a follow-up article related to the nationality (citizenship) issue.

 

https://woongaro.tistory.com/notice/3

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