Dual National with 3-Year Wait Unable to Serve Public Interest Duty... Court Rules "Nationality Selection Rejection Unfair"

A dual citizen who waited a long time for assignment as a social service agent was transferred to wartime labor service and then applied to choose Korean nationality, but the immigration office rejected the application. The court ruled that this decision was unjust.

According to the legal community on the 12th, the Administrative Court of Seoul, Administrative Division 6 (Chief Judge Lee Ju-young) recently ruled in favor of plaintiff A, a dual citizen, in a lawsuit filed against the head of the Seoul Immigration Office seeking cancellation of the rejection of his nationality selection report.

A was born in the United States and held dual citizenship. In 2017, he was classified as Grade 4 in the military service physical examination and designated as a candidate for social service agent conscription.

However, since the number of people classified as social service agents exceeded the actual need, A waited for about three years without being assigned and was transferred to wartime labor service in 2021. Wartime labor service means that those who cannot serve in active duty or supplementary service are called up during wartime to perform support duties.

The following year, A pledged not to exercise his foreign nationality and reported to the immigration office to choose Korean nationality. However, the immigration office rejected his application, not recognizing that he had fulfilled his military service obligation. In response, A filed an administrative lawsuit, arguing that "wartime labor service should be regarded as having effectively completed or fulfilled military service."

The Nationality Act stipulates that a person who acquires dual nationality before the age of 20 must choose one nationality before turning 22. If the period has passed, to choose Korean nationality, one must either renounce the foreign nationality or fall under the case of "having completed or being regarded as having completed military service" and pledge not to exercise the foreign nationality.

The court ruled in favor of A. The bench stated, "In this case, it is not explicitly stipulated as a case of 'being regarded as having completed service,'" but added, "Since the failure to fulfill military service was due to reasons beyond the conscript's control and there is no concern of evading military duty, A should be considered as having completed military service."

Furthermore, the court said, "The defendant claims that A could have applied to change his military service status to active duty or actively sought institutions in other regions with fewer conscripts to fulfill social service duties, but A’s lack of active efforts to fulfill military obligations in a way that might disadvantage himself cannot be evaluated as a fault," and concluded, "Ultimately, this disposition disadvantages A due to the state's allocation of military service resources, which is unjust."

The immigration office has appealed against this decision.