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ABSTRACT
Migration scholars have noted the growing role of the courts in expanding migrants’ rights. Drawing from naturalisation litigation in South Korea for case studies, this article investigates the role of the court in determining national membership. Three main findings are presented based upon an analysis of 105 marriage-based and 36 kinship-based litigations filed against the Ministry of Justice in the Seoul Administrative Court. First, the Court adopts a more liberal interpretation of ‘true intention to marry’ than the Ministry, granting citizenship to those who convincingly perform their roles as dutiful wives. Second, the Court plays a more active role in kinship-based than marriage-based naturalisation, challenging the Ministry's too-narrow interpretation of the requirements. Overall, however, the Court shows strong judicial deference to the Ministry and plays a passive role in advocating for the rights of migrants. The Korean case highlights the need to revisit the tendency to view immigration and citizenship as special classes of public laws, over which administrative and legislative bodies of a government can exercise a significant degree of discretion. As citizenship is becoming an important dimension of social stratification, the judicial branch should serve as a check on the executive branch in issuing visas and granting citizenship.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. The Court redacts all the personal information including the names of the plaintiffs before releasing the statement to the public. All the names in the article are alias given by the author.
2. Judges CHA Hangjeon, JO Hyunwook, KIM Haeseong, Seoul Administrative Court, Case No. 2014GUHAP14762. Date of Verdict: 30 October 2014.
3. I would like to thank one of the anonymous reviewers of JEMS for pointing out this point.
4. It is important to note that, by playing the passive spectator, the court actually legitimates and naturalises racist, sexist, and classist immigration and citizenship laws. Furthermore, critical and feminist legal scholars have noted the central role of the legal system in normalising gendered, sexualised, and racialised citizenship (see, e.g. Augustine-Adams Citation2000; Calavita Citation1998; Gardner Citation2005; Sapiro Citation1984).
5. The 1997 Constitution finally institutionalised the election of the President by popular vote. Legal system wise, the 1997 Constitution mandates the creation of the Constitutional Court. The Constitutional Court has the authority to view a legislation's constitutionality and embodies ‘a new dedication to constitutionalism – a promise of effective legal protection of fundamental civil, political and economic rights' (West and Yoon Citation1992, 75).
7. Identifying a plaintiff's gender required attention to details in the court documents, since all personal information is redacted. In the absence of names, I identified the plaintiff's sex based on contextual information, such as gendered appellations or titles. For example, the phrase ‘the plaintiff A's husband’ indicates that A is female. While occupation is a good indicator of sex in the Korean context (e.g. it is often men who work at construction and it is often women who work at restaurants), I did not use occupation alone to assign sex, lest my preconceptions introduce bias to the data. This conservative sex identification method explains the relatively high number of cases with unidentified sex.
8. The trends identified in this article should not be considered as a carbon copy of naturalisation decision-making by the Ministry. Although there are certain resemblances between the overall naturalisation applications and naturalisation appeal litigations (e.g. by gender and nationality), one has to keep in mind that not all rejected applicants file a lawsuit against the Ministry.
9. The performance aspect of naturalisation is not only gendered but racialised as well. For example, Tehranian (Citation2000) notes how whiteness was determined through a plaintiff's performance in the US naturalisation litigations. According to Tehranian, ‘successful litigations demonstrated evidence of whiteness in their character, religious practices and beliefs, class orientation, language, ability to intermarry, and a host of other traits that had nothing to do with intrinsic racial grouping’ (Tehranian Citation2000, 820–821).
10. Judges PARK Taejoon, AHN Seounghoon, and GWAK Sangho. Case No. 2011GUHAP38766. Date of Verdict: 10 May 2012.
11. Judges PARK Taejoon, AHN Seounghoon, and GWAK Sangho. Case No. 2011GUHAP38766. Date of Verdict: 10 May 2012.
12. I would like to thank you for one of the anonymous reviewers of JEMS for highlighting this point.
13. I would like to thank one of the anonymous reviewers of JEMS for pointing out this point.
14. Judeges LEE Inhyung, YOO Hwanwoo, and YOO Sangho. Case No. 2009GUHAP47252. Date of Verdict: 27 August 2010.
15. Freeman (Citation2011) and Kim (Citation2011)'s respective ethnographic studies have shown that some immigrants do use ‘fake divorce’ as a strategy to gain access to restrictive Korean labor market.
16. Judges JUNG hyungsik, Lee Yeoseol, and HUH Yihoon. Case No. 2009GUHAP29097.
17. Judges LEE Naejoo, KIM Jungjoong, and JO Heechan. Case No. 2009GUHAP2231. Date of Verdict: 4 December 2009.
18. Judges KIM Hongdo, PARK Jaeyoung, and LEE Yongwoo. Case No. 2009GUHAP23372. Date of Verdict: 20 November 2009.
19. See, e.g. Case No. 2013GUHAP16173.
20. Judges HAN Chang Ho, LEE Dong Jin, and YOO Dongkyoon. Case No. 2008NO1702.
21. For example, in the Netherlands, Dutch native men ‘were explicitly excluded from the image of fraudulent marriages because many international relationships were sincere and it wasn't unusual for Dutchman to fall in love while abroad, since '“love knew no borders”’ (Bonjour and de Hart Citation201Citation3, 67) while Dutch native women bringing in foreign spouse was heavily scrutinised.
22. 2009GUHAP56600
23. 2009GUHAP35795
24. Judges LEE Inhyung, YOO Hwanwoo, and YOO Sangho. Case No. 2009GUHAP56600. Date of Verdict: 6 June 2010.
25. Judges JANG Sangkyoon, Lee Dongwook, and JUNG Haeeun. Case No. 2009GUHAP19779. Date of Verdict: 5 November 2009.
26. Judges KIM Hongdo, PARK Jaeyoung, and LEE Youngwoo. Case No. 2009GUHAP12556. Date of Verdict: 3 July 2009.
27. Judges SEO Taehwan, SONG Minkyung, and KIM Sunah. Case No. 2009GUHAP35795. Date of Verdict: 3 July 2010.
28. Judges SEO Taehwan, SONG Minkyung, and KIM Sunah. Case No. 2009GUHAP35795. Date of Verdict: 3 July 2010.
29. 2009GUHAP21567, Date of Verdict: 2 July 2010.
30. Judges Jung Hyeongsik, Lee Yesoul, Huh Yihoon. Seoul Administrative Court, Case No. 2009GUHAP5473. Date of Verdict: 28 May 2009. This statement appears in almost every single decision made at the Court.
31. See, e.g. 2013GUHAP52834
32. See, e.g. 2009GUHAP56600. This statement appears not only in court statement issued by other branches of Administrative Court, but also by High Courts as well.