As previously discussed by Petros and Innocente, countries including Germany, Austria, and Norway, which generally require applicants for naturalisation to give up foreign citizenship, provide for an exception if the old country makes giving up citizenship especially difficult. Some countries’ definitions of “difficult” include economic difficulties, such as a fee which is more than a certain proportion of the applicant’s monthly wage. In 2014, the United States announced that it was raising the fee for renunciation to $2,350, twenty times the average level of other developed countries, more than twice the level charged by the next-highest country I could find (Jamaica), and greater than the monthly wage for many young people or non-professionals.
South Korea’s Nationality Act also contains such a “difficulty” exception, while Taiwan has a similar exception for “reasons not attributable to the person in question”. However, neither definition includes absurd fees such as Washington’s $2,350 fee — which is more than seventy-eight times Taipei’s fee and one-hundred-and-seventeen times Seoul’s fee for their own citizens seeking to exercise their fundamental human right to change their nationality.
South Korea at least allows successful applicants one year after the event of naturalisation to submit proof of loss of their previous citizenship, meaning that American emigrants there can relinquish rather than renounce U.S. citizenship and avoid the fee. Taiwan, in contrast, requires such proof to be submitted at the time of application; though recently there have been proposals to change this, until those proposals become law, American emigrants seeking to become citizens there still have to pay through the nose to renounce U.S. citizenship rather than relinquish it.
- South Korea: no statutory definition of “difficulty”
- Regulations define “difficulty” narrowly
- Taiwan: current law
- “Preliminary proof” insufficient for U.S. relinquishment
- Proposed reform
Unlike Taiwan’s laws, South Korea’s Nationality Act excepts certain immigrants & returnees from the general principle of single nationality. Most applicants for naturalisation or restoration of citizenship must present proof from their other country of having gone through the procedures under that country’s law to give up that citizenship. However, people from mixed-nationality families, the elderly, those who have made special contributions to the country, and those who have difficulty giving up foreign citizenship can all avoid those procedures, as long as they swear an oath not to “exercise” their foreign nationality while in South Korea.
That oath is, basically, a domestic-law implementation of the Master Nationality Rule. Note, however, that it only prohibits individual South Korean citizens or the other government which claims them from asserting rights which arise from that foreign nationality against the South Korean government when the person is in South Korea. The oath, and the Rule in general, does not prohibit any government or private actors from using the fact that a person might be considered a national of some other country under that country’s law to discriminate against that person. Protecting people against such discrimination actually requires anti-discrimination laws, not just the Master Nationality Rule.
제10조(국적 취득자의 외국 국적 포기 의무)
Article 10 (Duty of person acquiring nationality to abandon nationality of foreign country)
|① 대한민국 국적을 취득한 외국인으로서 외국 국적을 가지고 있는 자는 대한민국 국적을 취득한 날부터 1년 내에 그 외국 국적을 포기하여야 한다.||(1) A person who, being a foreigner, acquires the nationality of the Republic of Korea and holds the nationality of a foreign country shall, within one year from the day of acquiring the nationality of the Republic of Korea, abandon the nationality of the foreign country.|
|② 제1항에도 불구하고 다음 각 호의 어느 하나에 해당하는 자는 대한민국 국적을 취득한 날부터 1년 내에 외국 국적을 포기하거나 법무부장관이 정하는 바에 따라 대한민국에서 외국 국적을 행사하지 아니하겠다는 뜻을 법무부장관에게 서약하여야 한다.||(2) Paragraph 1 notwithstanding, a person to whom one of the following subparagraphs is applicable shall, within one year from the day of acquiring the nationality of the Republic of Korea, abandon the nationality of the foreign country or, in the manner prescribed by the Minister of Justice, make an oath to the Minister of Justice of his intention not to exercise the nationality of a foreign country within the Republic of Korea.|
|1. 귀화허가를 받은 때에 제6조제2항제1호·제2호 또는 제7조제1항제2호·제3호의 어느 하나에 해당하는 사유가 있는 자||1. A person to whom is applicable any one of the grounds of Article 6, Paragraph 2, Subparagraph 1 or Subparagraph 2, or Article 7, Paragraph 1, Subparagraph 2 or 3 at the time he receives permission for naturalisation|
|2. 제9조에 따라 국적회복허가를 받은 자로서 제7조제1항제2호 또는 제3호에 해당한다고 법무부장관이 인정하는 자||2. A person who received permission for restoration of nationality according to Article 9 and is confirmed by the Minister of Justice as a person to whom Article 7, Paragraph 1, Subparagraph 2 or Subparagraph 3 is applicable|
|3. 대한민국의 「민법」상 성년이 되기 전에 외국인에게 입양된 후 외국 국적을 취득하고 외국에서 계속 거주하다가 제9조에 따라 국적회복허가를 받은 자||3. A person who, prior to becoming an adult under the Civil Code of the Republic of Korea, was adopted by a foreigner and later acquired the nationality of a foreign country and continued to reside in a foreign country, and receives permission for restoration of nationality under Article 9|
|4. 외국에서 거주하다가 영주할 목적으로 만 65세 이후에 입국하여 제9조에 따라 국적회복허가를 받은 자||4. A person who resided in a foreign country but, after reaching the age of 65, enters the country and receives permission for restoration of nationality under Article 9|
|5. 본인의 뜻에도 불구하고 외국의 법률 및 제도로 인하여 제1항을 이행하기 어려운 자로서 대통령령으로 정하는 자||5. A person who is confirmed by the Minister of Justice as having difficulty in fulfilling the provisions of Paragraph 1 arising from the law or system of the foreign country despite the person’s own intention, as defined by presidential order|
|③ 제1항 또는 제2항을 이행하지 아니한 자는 그 기간이 지난 때에 대한민국 국적을 상실한다.||(3) A person who does not fulfill Paragraph 1 or Paragraph 2 shall, upon the passage of that period of time, lose the nationality of the Republic of Korea.|
One small mercy is that Article 10 of the Nationality Act only requires you to give up your foreign citizenship after you have been naturalised; thus, Americans can treat their acquisition of South Korean citizenship as a relinquishing act under 8 USC § 1481(a)(1), and report it to the U.S. consulate as such in order to avoid the absurd renunciation fee.
As you can see in Subparagraph 5 above, the National Assembly chose to let the executive decide exactly what constitutes “difficulty … arising from the law or system of the foreign country despite the person’s own intention”. The statute might give the executive the authority to decide that absurd renunciation fees or other economic difficulties constitute “difficulty”, but the executive has decided not to exercise that authority, for now: current regulations define “difficulty” narrowly. The only people exempt from the duty of abandoning their foreign citizenship under the foreign country’s laws are those for whom such abandonment is impossible. Those who face extreme delay are exempted for only so long as it takes them to complete the procedure.
시행령제13조(외국 국적 포기가 어려운 자 등)
Implementation Order, Article 13 (Person for whom it is difficult to abandon the nationality of a foreign country, etc.)
|① 법 제10조제2항제5호에서 “대통령령으로 정하는 자”란 다음 각 호의 어느 하나에 해당하는 사람을 말한다.||(1) In Article 10, Paragraph 2, Subparagraph 5 of the Act, “a person … defined by presidential order” means a person to whom one of the following subparagraphs is applicable.|
|1. 외국의 법률 및 제도로 인하여 외국 국적의 포기가 불가능하거나 그에 준하는 사정이 인정되는 사람||1. A person for whom it is confirmed it is impossible to abandon the nationality of a foreign country due to reasons arising from the law or system of the foreign country, or circumstances equivalent to that|
|2. 대한민국 국적을 취득한 후 지체 없이 외국 국적의 포기절차를 개시하였으나 외국의 법률 및 제도로 인하여 법 제10조제1항에 따른 기간 내에 국적포기절차를 마치기 어려운 사정을 증명하는 서류를 법무부장관에게 제출한 사람||2. A person who, after acquiring the nationality of the Republic of Korea, commenced the procedure for abandoning the nationality of the foreign country without delay, and submits to the Minister of Justice documents proving difficult circumstances in the procedures for abandoning the nationality of the foreign country within the period under Article 10, Paragraph 1 of the Act for reasons arising from the law or system of the foreign country|
|② 제1항제2호에 해당하는 사람이 외국 국적의 포기절차를 마쳤을 때에는 지체 없이 국적포기증명서등을 법무부장관에게 제출하여야 한다.||(2) A person to whom Paragraph 1, Subparagraph 2 is applicable shall, upon completing the procedures for abandonment of nationality of the foreign country, submit the certificate of abandonment of nationality, etc. to the Minister of Justice without delay.|
Under Taiwan’s current Nationality Law, immigrants applying for naturalisation must give up their former citizenships, while emigrants from Taiwan who apply for another citizenship are allowed to retain their Republic of China citizenship. This is similar to the situation in Estonia, Namibia, and Hong Kong — all of those being places which were formerly under foreign control, and in which the new governments wanted to disallow colonists from the former colonial metropole or occupying power to become dual citizens, but ended up allowing their diasporae to retain citizenship.
However, Taiwan in particular has a very strange requirement: you must make yourself stateless before you apply for naturalisation, and submit a certificate of loss of your original nationality along with your application, without any guarantee that your application will be approved. In practice, there’s procedures for pre-application screening, but even after the official application has been submitted, the government can still reject it. In some cases this makes it impossible for people to apply for naturalisation at all; in others it’s left them stateless after their applications were turned down, for example if an applicant applies for accelerated naturalisation on the basis of marriage but the marriage ends due to divorce or death while the application is still pending.
|外國人依第三條至第七條申請歸化者，應提出喪失其原有國籍之證明。但能提出因非可歸責當事人事由，致無法取得該證明並經外交機關查證屬實者，不在此限。||A foreigner who applies for naturalisation under Article 3 through Article 7 shall submit proof of loss of his original nationality. However, for a person who submits that reasons not attributable to the person in question make it impossible to obtain proof of loss of the original nationality, upon inspection and verification by the foreign affairs organs, this limitation shall not apply.|
Current regulations don’t define “reasons not attributable to the person in question”, but in administrative practice this apparently is interpreted to mean either that the country in question doesn’t allow loss of nationality at all, or won’t let its loss-of-nationality provisions be triggered by naturalisation in Taiwan because the country doesn’t recognise Taiwan’s government. Difficulty in renouncing citizenship (e.g. due to absurd fees or extreme delays) doesn’t trigger this provision either.
Current regulations do state that the Ministry of the Interior will issue “preliminary proof of naturalisation to the nationality of the Republic of China” to naturalisation applicants. This is one possible attempt at a literal translation of the Chinese name (準歸化中華民國國籍證明); the Ministry of the Interior officially calls the document they issue under these regulations a “Certificate of ROC Naturalization Candidacy”.
In any case, the Chinese name (particularly the character “準”) & its English translation are sufficiently vague that the ministry felt obliged to clarify in the regulations that this certificate is not actual naturalisation which could later be cancelled, and doesn’t come with any of the privileges of nationality; nor is it even a guarantee that naturalisation will be granted after the applicant gives up foreign citizenships. In my below translation, I’ve used the “preliminary proof of naturalisation” rather than the official name.
Implementation Rules, Article 10
|外國人為依本法第九條規定提出喪失其原有國籍證明，得填具準歸化國籍申請書，並檢附第八條第一項第二款至第八款或前條第一款、第三款所定文件，向國內住所地戶政事務所申請準歸化中華民國國籍證明，由該戶政事務所查明其刑事案件紀錄，併送直轄市或縣（市）政府轉內政部核發。||A foreigner, in order to obtain proof of loss of the original nationality under Article 9 of the Law, may complete an application form for preliminary naturalisation, including for inspection the documents specified in Article 8, Paragraph 1, Subparagraph 2 through Subparagraph 8 or Subparagraph 1 and Subparagraph 3 of the preceding article, and submit it to the household registration office in his place of domicile in order to apply for preliminary proof of naturalisation to the nationality of the Republic of China. That household registration office shall ascertain [the applicant’s] criminal record, and then send [the documents] to the government of the special municipality or county (city) for forwarding to the Ministry of the Interior.|
|前項所定準歸化中華民國國籍證明之有效期限為二年，僅供外國人持憑向其原屬國申辦喪失原有國籍，不作為已歸化我國國籍之證明。||The validity period of preliminary proof of naturalisation to the nationality of the Republic of China under the preceding paragraph is limited to two years. It is provided only so that a foreigner can use it to apply to the government of his country of origin for loss of original nationality, and does not function as proof that [the person] has already naturalised and obtained our country’s nationality.|
|外國人於取得第一項準歸化中華民國國籍證明後，應檢附喪失原有國籍之證明文件，向住所地戶政事務所申請歸化，由該戶政事務所再查明其刑事案件紀錄，併送直轄市、縣（市）政府轉內政部。||A foreigner, after obtaining preliminary proof of naturalisation to the nationality of the Republic of China under Paragraph 1, shall attach documents proving loss of original nationality to the application for naturalisation submitted to the household registration office in his place of domicile. That household registration office shall again ascertain [the applicant’s] criminal record, and then send [the documents] to the government of the special municipality or county (city) for forwarding to the Ministry of the Interior.|
|外國人於取得歸化許可前，有不符本法所定歸化要件者，內政部應不予許可歸化。||A foreigner who, prior to obtaining permission for naturalisation, did not meet the prerequisites for naturalisation under the law, shall not be granted permission for naturalisation by the Ministry of the Interior.|
The U.S. State Department does not regard this document as sufficient to trigger § 1481(a)(1). Nor do they afford such treatment to other similar documents issued by administrative authorities in other places (e.g. “approval-in-principle” letters issued by Hong Kong’s Immigration Department). Therefore, American emigrants who apply for naturalisation in these countries cannot enjoy no-fee relinquishment but instead have to renounce under § 1481(a)(5) and incur the State Department’s absurd fees.
In December 2014, the Interior Committee of the Legislative Yuan considered various proposals for reforming Taiwan’s Nationality Law. One proposal they adopted would allow proof of loss of nationality to be submitted after naturalisation has been granted, allowing American naturalisation applicants there to escape State Department scalping. (I omitted the second half of the proposal, containing various exceptions for dual citizenship). This is part of the same package of reforms which would allow parents to give up citizenship on behalf of their adult children who lack the legal capacity to do so themselves.
|外國人申請歸化，應於許可歸化之日起，或依原屬國法令須滿一定年齡始得喪失原有國籍者自滿一定年齡之日起，一年內提出喪失原有國籍證明。屆期未提出者，應撤銷其歸化許可。||A foreigner who applies for naturalisation shall, within one year from the day of permission for naturalisation, or of the day on which a person who under the law of his country of origin can only lose his original nationality upon reaching a certain age reaches that certain age, submit proof of loss of original nationality. For a person who has not submitted by the passage of that period, the permission for naturalisation shall be cancelled.|
|未依前項規定提出喪失原有國籍證明前，應不予許可其定居。||Prior to the submission of proof of loss of original nationality under the preceding paragraph, no permission for settlement shall be granted.|
“Permission for settlement” refers to household registration. In Taiwan, for historical reasons, household registration rather than nationality is the real source of what people usually call “rights of citizenship”. Many overseas Chinese who never had any connection with Taiwan, but retained allegiance to the old Republic of China after 1949, are “nationals” under the Nationality Law and consider themselves as such. They are entitled to Taiwan passports (which unfortunately don’t give them access to visa waivers in other countries) and a few other rights. Some of them have even moved to Taiwan, but that requires approval from immigration authorities, and for most practical purposes their rights in Taiwan are more similar to those of foreigners than locals. Under the Interior Committee’s proposal, newly-naturalised immigrants would first have this “national without citizenship” status until providing proof that they’d given up their previous citizenships.
In any case, the Interior Committee’s proposed amendments still haven’t become law yet, and in the meantime the existing “reasons not attributable to the person in question” dual-citizenship exception doesn’t help American emigrants in Taiwan — they still must go through the renunciation procedure under 8 USC § 1481(a)(5), for which the State Department charges a fee of US$2,350. The committee also adopted a resolution — proposed by Democratic Progressive Party members, but co-signed by Kuomintang and Taiwan Solidarity Union members as well — calling on the Ministry of the Interior to amend the regulations to add a “delay” exception like South Korea’s into the definition of difficulty in obtaining proof of loss of one’s original nationality:
|為解決婚姻移民申請歸化而需提出「喪失原有國籍證明」時，可能遇有各類「非可歸責於當事人之事由」之困難，致無法取得該證明，或部份國家放棄國籍程序時間可能超過兩年，而使當事人無法及時提出該證明，故要求內政部應儘速修訂國籍法施行細則，明訂我國政府相關單位於一定期限內無法完成查證或取得其他國家的相關證明文件，即應視同構成「非可歸責於當事人之事由」，避免當事人因無法提出該證明而難以順利歸化。||When marital immigrants applying for naturalisation must submit proof of loss of former nationality, they may encounter difficulties arising from “reasons not attributable to the person in question”, making them unable to obtain that proof. In some countries, the procedures for abandoning nationality may take longer than two years, causing the person in question to be unable to provide that proof on time. In order to resolve [this problem], we demand that the Ministry of Interior should amend the Nationality Law Implementation Rules as soon as possible, to clarify that the inability of the relevant organs and departments of our country’s government to complete the process of inspection or obtaining certificates or relevant documents of proof from other countries within a certain period of time, should also be regarded as “reasons not attributable to the person in question”, to avoid that inability to submit such proof would cause naturalisation difficulties for the person in question.|
|提案人：李俊俋 陳其邁 尤美女||Proposers: Lee Chun-yi, Chen Chi-mai, Yu Mei-nu|
|連署人：段宜康 蕭美琴 陳學聖 黃文玲||Co-signatories: Tuan Yi-kang, Hsiao Bi-khim, Shen Shei-saint, Huang Wen-ling|