The Constitutional Court ruled that the lack of regulations on birth registration for foreigners born in Korea is unconstitutional.
On the 27th, the court delivered a decision confirming unconstitutionality by a unanimous opinion of all justices in a constitutional complaint filed by a Vietnamese man surnamed Nguyen and his child, who said the legislature's omission in failing to provide for birth registration of foreigners born in Korea is unconstitutional.
Nguyen entered in Oct. 2008 on a non-professional employment (E-9) visa and is currently undocumented. Nguyen married a person surnamed Doan, who entered in June 2008 on an E-9 visa and is currently undocumented, in 2016. They had a child in Apr. 2019 at a medical center in Seoul. Because there was no law allowing foreigners to register a birth in Korea, the child's birth was registered in Mar. the following year under Vietnamese law.
The current Act on the Registration of Family Relations provides only for the registration of births, marriages, and deaths of "citizens." There is no provision on birth registration for foreigners born in Korea, like the child of Nguyen and Doan.
The court said, "If a child born in our country is excluded from birth registration for any reason and their existence cannot be verified on paper, they are relatively more likely to be abused or abandoned," adding, "Regardless of nationality, for the state with jurisdiction over the place of birth to officially record the child's existence immediately upon birth is a minimum safeguard for the child."
It continued, "The 'right to be registered at birth immediately after being born' is an independent fundamental right not expressly stated in the Constitution that can be invoked to require the establishment of minimum safeguards so a child can freely manifest personality," adding, "Whether that child is a national or a foreigner cannot be a basis to differentiate whether the right is guaranteed."
Separately, Nguyen filed a constitutional complaint, saying that the Framework Act on Education and other laws limit the subjects of six years of elementary education and three years of secondary education to citizens, creating practical restrictions on the child receiving elementary and secondary education and thereby infringing the right to education.
The court dismissed all challenges to the Framework Act on Education and the Enforcement Decree of the Elementary and Secondary Education Act. The court said, "These statutory provisions are definitions and, by themselves, cannot cause an infringement of fundamental rights," adding, "The issues the claimants raise stem from separate statutory provisions."
It added, "The provision of the decree at issue is not one that restricts the admission of foreigners, and it allows undocumented foreign children to apply for admission and transfer," and "there is no recognizable possibility of a fundamental-rights violation."
The Ministry of Justice allows parents to remain in Korea until their child turns 24 if the child, even when the parents are undocumented foreigners, was born in Korea or entered mid-stay and is enrolled in an elementary, middle, or high school in Korea and has been granted lawful stay status. Previously, parents could remain in Korea only until one year after the child graduated from high school or became an adult (19), but this has been extended starting this year.
Earlier, in 2010, the government revised the Enforcement Decree of the Elementary and Secondary Education Act to simplify admission and transfer procedures so that even the children of undocumented migrants can attend elementary and secondary schools in Korea. It is sufficient for a guardian to prove residence in Korea, such as by submitting a lease agreement.