Seeking Safer Shells: An Analysis of Interpretations, Justifications, and Rationales Behind Decisions on North Korean Defectors’ Right to Asylum

April 22, 2024

By Megumi Faith Mallari and Saleh Naas


Despite their known and indisputable need for protection, North Koreans often have their applications for asylum rejected. This paper outlines the differing interpretations of North Koreans’ right to asylum and investigates the rationales and justifications behind them through the case studies of the United Kingdom, the United States, Germany, France, the Netherlands, and China (PRC). The paper argues that the rationale of the European countries analyzed is based on their generally restrictive view on asylum, independent from their political positioning on the Democratic People's Republic of Korea (DPRK). Contrastingly, the rationales of the United States and the PRC are grounded in interests directly related to the Korean peninsula and Cold War narratives. 


The legal recognition of North Koreans as refugees is not a guarantee. The refugees/defectors [1] are known to be vulnerable to deprivation, torture, abuse, arbitrary imprisonment, exploitation, and execution in the Democratic People's Republic of Korea (DPRK) (Kang 2013; Wolman 2022), but their recognition is a result of factors outside their control; it differs depending on where they seek safety. The largest number of defectors––over 34,000 since the division of the peninsula––head to South Korea (ROK), whose constitution recognizes, with a few limitations, anyone born on the Korean Peninsula as a South Korean national entitled to the protection of the ROK (Ministry of Unification 2023; Kang 2013). Thus, North Korean defectors in South Korea are not to be considered asylum seekers. One in three defectors, however, seeks safety in other countries with many wanting to settle in Western nations (Kang 2013). 

Among countries in Europe and North America, there are disparities in accessibility to documented justifications––such as court cases or appeals––behind North Korean asylum application results. While information from the United Kingdom, Germany, France, and the Netherlands is publicly available, that is not the case with many other Western countries. For instance, a personal email request to the Swiss State Secretariat for Migration on October 10, 2023 yielded confirmation that while they received 28 asylum applications from North Koreans between 1995 to 2023, they were all rejected with no justifications provided. [2] Switzerland and other European nations could therefore not be taken into consideration. Given the United States and China's (PRC) geopolitical influence and vastly different interpretations of North Koreans’ right to asylum, this paper also sees the benefit of including both countries in the comparative analysis.

Many of the countries analyzed do not grant North Koreans asylum for varying reasons, and those that do, demonstrate underlying complexities that drive their more nuanced practices. Hence, this paper discusses the question: What are the differences behind the justifications of the United Kingdom, the United States, Germany, France, the Netherlands, and the PRC for their respective interpretations of the right to asylum of North Korean defectors, and what are the rationales behind these differences?

After outlining the relevant legal frameworks, this paper provides country case studies on recognition practices concerning North Korean asylum seekers using scholarly books, journal articles, domestic law and policy data, court cases, and articles from non-governmental agencies and news media. Thereafter, it will analyze the political contexts in which those practices take place, taking into account the historical context of the Cold War, geopolitical tensions, as well as the relationships between those countries and the DPRK. 


Legal Frameworks

Under the 1951 Refugee Convention and its 1967 Protocol, the United Nations High Commissioner for Refugees (UNHCR) claims that North Korean defectors are refugees sur place—individuals who are not considered refugees upon leaving their country but become refugees later due to the persecution they are subjected to if they were to be deported (Goedde 2010; UNHCR 2019). UNHCR argues that while defections are initially due to food shortage and not “persecution,” deportation could lead to execution, arbitrary detention, torture, and severe physical abuse in prison camps (Kang 2013). Furthermore, defecting to another country is regarded as a crime punishable under the 1987 North Korean Criminal Code (Kang 2013).

Hence, as refugees, North Korean defectors should be provided the protection of Article 33 of the Convention, which enshrines the principle of non-refoulement stipulating that “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened” (UNHCR 2019, 59). All the countries examined in this paper have signed either the Convention, the Protocol, or both. Consequently, they are obligated to adhere to the protection measures outlined in these agreements. In addition to international refugee law, the 1984 Convention Against Torture Article 3(1) also states that “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” [3]

Nevertheless, recognizing refugees sur place, arguably blurs the line between political refugees and economic migrants—adding a layer of complexity for countries responding to this issue and incentivizing them to enforce refugee policies based on their political and economic interests (Kang 2013). Moreover, the status of North Korean refugees is often tied to the South Korean law that confers ROK citizenship to all DPRK nationals. Article 3 of the ROK Constitution claims that the entirety of the Korean Peninsula is part of South Korea, disregarding North Korea’s legitimacy as a state and recognizing DPRK nationals as South Koreans (Lee 2016) As such, North Koreans could be considered “dual nationals,” barring them from refugee recognition as per Article 1A(2) of the 1951 Convention, which emphasizes that a person with more than one nationality should first seek national protection in all countries of citizenship (Kang 2013). However, one could argue that the formal recognition of North Koreans as South Koreans only applies within the scope of South Korean domestic law, as the DPRK has functioned in numerous ways as an independent sovereign state by establishing its diplomatic relations and participating in international conventions (Kang 2013; Lee 2016). 


Country Interpretations

To develop a comprehensive response to the research question, this section investigates the interpretations of North Korean defectors’ right to asylum in the selected case studies of the United Kingdom, the United States, Germany, France, the Netherlands, and China.

The United Kingdom

The United Kingdom is home to one of the largest numbers of North Korean defectors outside Asia, with a majority being secondary asylum seekers with South Korean nationality choosing to leave the ROK due to discrimination (Song and Bell 2019). Between 2003 and 2018, 544 North Koreans have been recognized as refugees in the United Kingdom, while over 1,300 have applied for refugee status (Bell 2018). The asylum procedure is said to last about three to six months for these North Koreans who appear to have come to the United Kingdom because of existing transnational networks, affirming Massey (1999), who states that migration network expansion self-perpetuates overtime with the role of formal (agents, brokers) and informal networks (earlier migrants) that pave the way. The United Kingdom does not recognize the discrimination faced by North Koreans in South Korea as plausible grounds for asylum, as exemplified by AA/02825/2010 & Ors., where the Secretary of State argued that there is “no background material [...] to establish a real risk of ill-treatment or inhuman or degrading treatment during the Hanawon ‘life in Korea’ classes.” [4] Consequently, North Korean secondary asylum seekers in the United Kingdom often do not disclose their South Korean nationality as this voids their application and makes them subject to refoulement to South Korea under the 2012 UK-ROK Agreement on the Readmission of Persons (Song and Bell 2019). [5] Thus, in court cases, North Koreans appeal by indicating their DPRK roots. [6] In this reconsideration tier, the UK Upper Tribunal Immigration and Asylum Chamber (UKUT) seemingly decides based on length of stay outside the Korean peninsula under the framework of the ROK Citizenship law: if the appellant is known to not have resided outside of the Korean Peninsula for 10 years, they are sent to South Korea; [7] if they are recognized to have been outside for over 10 years, they are accepted. [8] For the latter, UKUT recognizes that if an appellant is not a national at the time of the case and ‘may be refused nationality’, they shall not be treated as a dual national (Wolman 2012).

The United Kingdom initially had a “tradition of accepting North Koreans” (Leftly 2014), but its policy became more stringent when the UK Borders Act 2007 came into force in 2008 (Park 2015; UK Home Office 2023), and the United Kingdom required the collection of a “biometric immigration document” to use “in specified circumstances, where a question arises about a person’s status in relation to nationality or immigration.” [9] At the same time, UK and South Korean authorities agreed “to check the fingerprints of alleged North Korean asylum seekers against the South Korean citizenship database,” following intelligence reports of DPRK defectors concealing their ROK nationality (UK Parliament 2008).

The United States

The main channel through which North Koreans seek asylum in the United States  is the North Korean Human Rights Act of 2004 (NKHRA) which was signed into law by President George W. Bush, extended in 2008, and was most recently submitted for reauthorization in May 2022 by Senators Marco Rubio and Tim Kaine (Kaine 2022). The act asserts that North Korean nationals are eligible for refugee status in the United States and that the State is to facilitate their asylum applications. [10] While the NKHRA did increase the number of refugee admissions during its implementation, the number of recognized refugees remained small, particularly relative to the overall number of refugees who were admitted into the U.S. Refugee Resettlement Program (Cohen 2011), the main refugee resettlement pathway in the country. The main obstacles for North Koreans seeking refugee status in the United States are two-fold. First, the asylum application process takes from six months to two years, causing many to withdraw their applications (Cohen 2011). Second, the U.S. Department of State reflects the view that there is an international consensus that South Korea is “the resettlement country of choice in virtually all cases” for North Koreans as the ROK Constitution grants citizenship to resettled North Koreans within the first few months of arrival (Cohen 2011). This access to South Korean citizenship led to an earlier U.S. interpretation that “all departing North Koreans were ineligible for U.S. refugee status because they could enjoy the protection of the Republic of Korea” (Cohen 2011). However, the NKHRA distinguishes between having the legal entitlement to ROK nationality and the actual process of exercising that right. It recognizes that not all DPRK defectors “are able or willing to relocate in South Korea” and closed access to asylum only for those who have availed themselves of that option (Cohen 2011). The Interim Decision #3560 [11] exemplifies this, with the court case coming to the conclusion that (italics added):

  1. The North Korean Human Rights Act of 2004, Pub. L. No. 108-333, 118 Stat. 1287, which provides that North Koreans cannot be barred from eligibility for asylum on account of any legal right to citizenship they may enjoy under the Constitution of South Korea, does not apply to North Koreans who have availed themselves of the right to citizenship in South Korea.
  2. The respondents, natives of North Korea who became citizens of South Korea, are precluded from establishing eligibility for asylum as in North Korea on the basis of their firm resettlement in South Korea.

Hence, while the NKHRA opened doors to the systematic recognition of North Korean refugees in the United States, bureaucratic processes and legal technicalities such as the possibility to have initially ‘firmly resettled’ in South Korea pose as obstacles that bar them from being recognized refugees. However, it is important to note that there is no information on the implementation of the NKHRA in the 2020s.

Europe: Germany, France, and The Netherlands

As members of the European Union (EU), Germany, France, and the Netherlands come under the jurisdiction of the Common European Asylum System, which highlights the European “shared responsibility to welcome asylum seekers” and ensure an “open and fair” asylum system (European Commission, n.d.).

However, according to a 2015 policy paper titled ‘A Case for Clarification: European Asylum Policy and North Korean Refugees’ published by the now-defunct European Alliance for Human Rights in North Korea, European states generally deny refugee status to North Korean defectors (European Council on Refugees and Exiles, n.d.). While concrete data regarding the number of North Korean asylum applications are not publicly available, a summary of the abovementioned paper states that applicants are considered South Korean citizens (European Council on Refugees and Exiles, n.d.). Consequently, they must present “reasonable fear of persecution in both North and South Korea to be considered refugees” (Power 2015). This is seen to be the case in practice in Germany and the Netherlands with an emphasis on the perceived status of the defectors in DPRK society, though France presents a more nuanced interpretation of North Koreans’ ‘automatic’ dual nationality (Wolman 2022).


In 2005, a German administrative court (Verwaltungsgerichtshof Baden Wuerttemberg) ruled over the decision of the Federal Office for Migration and Refugees (BAMF), which declined a North Korean’s asylum application in 2001, as BAMF was not convinced that the applicant was a North Korean citizen and not an ethnic Korean from China. [12] The court declared that although it is probable that the plaintiff is North Korean, their nationality in this case holds no relevance. [13] This is because DPRK citizens are also considered South Korean citizens according to ROK law, thus making them eligible for the protection of South Korea. [14] The court further elaborated that it believes that North Korean refugees are sufficiently protected from persecution and deportation in South Korea unless they are high-ranking officials in the DPRK. [15]


In 2011, the National Court of Asylum (CNDA) decided that South Korea could not impose its nationality on defectors to the extent that it would nullify their asylum application (Wolman 2022). The court’s reasoning establishes that defectors’ “South Korean nationality should be considered illegitimate because it is a form of collective involuntary naturalization”––a form of imposing a new nationality on an individual against their will––particularly in the context of refugee status determination (Wolman 2022).

In another case in 2016, the CNDA ruled over an appeal made by a North Korean asylum seeker whose application was initially rejected based on the assumption that the asylum seeker also holds South Korean citizenship. [16] The court argued that it could not be assumed that the asylum seeker could claim ROK citizenship as they have not lived on the Korean Peninsula for over 10 years, therefore, they were granted asylum based on the assumption of having solely DPRK citizenship. [17]

The Netherlands

 In 2013, a Dutch court (Rechtbank Den Haag) rejected a North Korean’s request for asylum, arguing that the asylum seeker is eligible for South Korean citizenship under ROK law as they have not been outside of the Korean Peninsula for over 10 years. [18] It further stated that it is of the opinion that the asylum seeker is sufficiently protected in South Korea. [19] In 2022, Rechtbank Den Haag ruled similarly for the asylum requests of a North Korean family. [20] The family claimed that settling in South Korea would likely have security risks for their family members still in the DPRK, as North Korean agents could identify them. [21] The court believed that this claim was unjustified as this would only be a reasonable claim if the asylum seekers were “high-ranking defectors” and “regular citizens” do not face a similar risk. [22] It made this assessment on the premise that it would be improbable to prosecute all family members of North Korean defectors in South Korea due to their sheer numbers. [23] 

In 2015, the Council of State (Raad van State) ruled that the previous rejection by the State Secretary for Security and Law of a defector's application, which was based on their South Korean nationality, was unlawful. [24]  Raad van State emphasized the possibility of the asylum seeker holding a high-ranking status in the DPRK. [25] This status was seen to pose an increased risk for the defector’s family members still in the DPRK if they were to settle in South Korea. [26]

China (PRC)

The PRC and the DPRK have a bilateral repatriation agreement wherein North Koreans who have crossed into China are deported (Kang 2013). The PRC sees North Koreans as economic migrants who have crossed into China illegally (Aldrich 2011; Kang 2013). UNHCR and Human Rights Watch strongly disagree with this interpretation, having reminded the PRC on several occasions that they are signatories to the 1951 Refugee Convention, and thus, it is illegal for them to deport asylum seekers who could face prosecution once forcibly repatriated (Human Rights Watch 2023).

Political Context

To develop a full understanding of the justifications behind the countries’ interpretations and practical implementation of the asylum system for North Korean defectors, this section assesses the respective countries’ relations with the DPRK and the historical events that may have impacted them.

Historical Parallels: East German Defectors During the Cold War

When discussing the contemporary treatment of asylum seekers from a divided territory, parallels emerge between the case of North Korean refugees today and the experiences of East German refugees during the Cold War era.

During the Cold War, East Germans were recognized as citizens in West Germany (Roberts 1985), similar to the practice of the ROK toward North Koreans today. Furthermore, both are subjected to perilous conditions upon crossing borders and severe consequences should they be caught (Kelly 2011). However, despite these similarities, there are significant internal differences between the DPRK and the former German Democratic Republic, which make their contexts not as alike as might be initially presumed (Hilpert 2010). There is a lack of information on cases where East Germans sought refuge in Western nations other than the United States or West Germany. Building on a few cases where East Germans applied for asylum in the U.S. embassy in East Berlin, the United States seemingly followed a similar policy as the countries who today regard the ROK as a safe country where DPRK refugees have citizenship and can be returned to (Roberts 1985). East Germans who applied for asylum in the U.S. embassy were either rejected and remained in East Germany or the embassy arranged for them to be transferred to West Germany (Roberts 1985).

In examining China’s contemporary practices toward North Korean refugees, Hungary emerges as a pertinent point of comparison among countries within the former Eastern Bloc. Notable as a transit country for East Germans fleeing to the West, Hungary—like China toward DPRK refugees today—did not recognize East Germans as refugees (Slachta and Tóth 2022). However, in the late 1980s, contrary to the contemporary practice of China, Hungary stopped deporting East Germans and allowed their transit (Slachta and Tóth 2022).

The United Kingdom and the DPRK

It could be argued that the United Kingdom’s relationship with North Korea is directly tied to South Korea’s relationship to the DPRK. For instance, the establishment of UK-DPRK bilateral diplomatic relations came in reaction to the slight normalization of inter-Korean relations in 2000 under the ROK’s “sunshine policy” (Morgan 2023). The EU’s ‘critical engagement’ policy toward the DPRK was adopted by the United Kingdom as part of the EU at the time, specifically through supporting humanitarian health and welfare projects in North Korea run by UN agencies or foreign NGOs with small grants (Morgan 2023; Fitzek 2017). The British Council also organized a program that taught North Korean teachers English for 17 years, which ended in 2017 following nuclear tests and missile launches by the DPRK (Morgan 2023; Fitzek 2017). After Brexit, the UK continued to sanction the DPRK by adopting the measures of Council Regulation (EU) 2017/1509 in UK legislation (The Swedish Club and Reed Smith LLP). Further cementing its strong ties to South Korea, the UK, and ROK signed a defense agreement in November 2023, jointly enforcing sanctions against DPRK to “curb smuggling and to enforce U.N. sanctions [...] to curb its nuclear weapons ambitions” (Lawless 2023).

In 2016, Pyongyang’s deputy ambassador to London, Thae Yong-ho, made headlines for defecting and fleeing to South Korea (Power 2016). While Thae did not ultimately stay in the United Kingdom and this high-ranking defection does not directly impact UK-DPRK relations, it presents a case for the ability and safety of defecting from UK territory.

The United States and the DPRK

The United States’ interest in Korea arguably stems from its involvement in the peninsula during and after the Cold War (Olsen 2005). While South Korea has been one of the United States’ closest military allies in the region since the Korean War, the United States and the DPRK do not maintain diplomatic relations (Congressional Research Service 2023; U.S. Department of State 2021). Today, the United States is strongly concerned about North Korea’s nuclear weapons program and applies a comprehensive set of economic sanctions against the DPRK; denuclearization of the peninsula is on the bipartisan agenda (Office of Foreign Assets Control 2023; Al Hashimi 2022). Moreover, the United States has been urging the international community to sever ties with Pyongyang following its increased missile tests (BBC 2017). 

Beyond the United States’ security agenda, its most relevant tie to DPRK is arguably the North Korean Human Rights Act of 2004. While the passage of this crucial legal framework is largely attributed to Christian groups within the North Korean Freedom Coalition, its predecessor bill––the ‘North Korean Freedom Act of 2003’––was proposed by a bipartisan alliance (Goedde 2010). The proposed bill’s main objectives were to “promote human rights, democracy, and development in North Korea” [27] and explicitly “condoned regime change; called for the end of weapons development, sales and transfers in and with North Korea; prioritized visa and residency status to North Korean refugees who could share information about North Korea’s weapons program; conditioned humanitarian aid on strict monitoring; and called for a task force on North Korean criminal activities” (Goedde 2010, 560). It also emphasized the United States Agency for International Development (USAID) funding for entities that “promote market economies” in the DPRK. [28] The bill faced criticism and was not passed, but while the passed NKHRA reflects the universalism of refugee rights and the pledging to provide defectors with humanitarian assistance, there is said to still be a “discrepancy between [...] political discourse and real policy” toward North Korean refugees (Kang 2013, 14). Kang (2013, 7) argues that along with the humanitarian intent, “the NKHRA actually served as the G. W. Bush regime’s conservative and aggressive response to the DPRK’s program of nuclear weapons,” demonstrating that the U.S. approach to North Korean refugee rights has arguably been influenced by its national interests.

Germany and the DPRK

Germany and the DPRK have a complicated relationship shaped by Germany's divided history of being both a country of the former Eastern Bloc and a Western capitalist state. 

East Germany (GDR) established diplomatic relations with the DPRK in 1949 (Wertz, Oh, and Insung 2016). The relationship between the GDR and the DPRK was close, with East Germany being one of the most significant contributors to the reconstruction of the DPRK after the Korean War (Horak 2010). There were also several North Koreans studying in East German universities during the Cold War era (Schäfer 2017). The reunified Germany was––up until recently––still maintaining research cooperation with DPRK scientists, inviting them as visiting scientists or doctoral students in German institutions on government-funded scholarships (Deutsche Welle 2022). The Federal Republic of Germany (former West Germany and the contemporarily unified Germany), established diplomatic relations with the DPRK only in 2001 (Wertz, Oh, and Insung 2016).

In contemporary times, Germany puts a strong emphasis on persuading the DPRK to participate in negotiations to end its nuclear program and participate in dialogues regarding North Korean human rights violations (German Federal Foreign Office 2022). As part of the EU, Germany applies comprehensive economic sanctions against the DPRK. [29] It also attempts to promote political voices within the DPRK that are perceived to be potential drivers of reform from within, even inviting the DPRK’s former foreign minister Kang Sok Ju to the country in 2014 (Schäfer 2023).

France and the DPRK

France and the DPRK have not established diplomatic relations (Ministry for Europe and Foreign Affairs 2020). Nevertheless, France is present in the DPRK with a cooperation office that works on cultural and humanitarian affairs, and the DPRK is present in France through its permanent delegation to UNESCO (Ministry for Europe and Foreign Affairs 2020; UNESCO). France heavily criticizes North Korea's nuclear weapons program and human rights violations, while North Korea has strongly condemned France’s air patrol activities near DPRK waters (Permanent mission of France to the United Nations in New York 2023; La France en Indonésie, au Timor oriental et auprès de l’ASEAN 2023; Reuters 2023). Under the EU sanctions regime, France comprehensively sanctions the DPRK. [30] It should however be noted that the DPRK elite appears to have a special relationship with the city of Paris, despite the rather unfriendly relationship between France and the DPRK (Levi 2023). For instance, quite a few members of Pyongyang’s elite spent time in Paris to pursue studies or seek medical treatment (Levi 2023).

The Netherlands and the DPRK

The Netherlands and the DPRK established diplomatic relations in 2001 (Wertz, Oh, and Insung 2016). However, the two countries do not operate representations in each other’s territory (Government of the Netherlands 2012). According to the Government of the Netherlands (2012), the Dutch embassy in Seoul covers DPRK issues and the DPRK embassy in Switzerland represents the Netherlands. Relations between the two countries are arguably rather tense; the Netherlands has condemned North Korea’s military provocations and its nuclear program and has voiced strong concerns over the human rights situation in the DPRK (Government of the Netherlands 2022). In the context of the EU, the Netherlands applies comprehensive economic sanctions against North Korea. [31] The DPRK, on the other hand, recently voiced open criticism that the Netherlands refused to grant visas to DPRK athletes wishing to participate in a tournament taking place in the country (O’Carroll and Bremer 2023). 

China (PRC) and the DPRK

No other country has greater influence in the DPRK than China; the two states traditionally maintain a close but somewhat complicated relationship since the establishment of diplomatic relations in 1948 (Kim 2017; Li and Li 2020; Wertz, Oh, and Insung 2016). Both are strongly connected through historical ties around ideology dating back to the Korean War and the Soviet Union era (Wang and Wang 2022). 

The geographical positioning of North Korea is of considerable significance in its relations with China; North Korea acts as an allied buffer state between their territory and South Korea, where U.S. forces are stationed (Kim 2017; Li and Li 2020). However, China is also committed to UN sanctions against the DPRK and is obligated by international law to adhere to them (Li and Li 2020). The DPRK has condemned China’s commitment to such sanctions on several occasions (Li and Li 2020). In this context, the relationship between the two countries appears to be shaped by severe trust deficits yet strong mutual interests (Kim 2017; Li and Li 2020).

China has often faced criticism from predominantly Western politicians who believe that the country failed in using its influence to stop North Korea’s nuclear program or other provocations (Li and Li 2020). Regardless of diplomatic tensions, the DPRK still appears to view China as a strong ally that emboldens them to provoke militarily, as seen through statistical evidence pointing out that there is a positive correlation between China’s rise as a global superpower and the DPRK’s increased hostilities (Chung 2023).

Discussion and Analysis

This paper discovered that in many destination countries, the primary hurdle preventing North Koreans from being acknowledged as refugees is the ROK law that grants South Korean nationality to North Koreans. Consequently, destination countries argue that applicants should seek protection from South Korea. China and the United States are exceptions to this. In China, the biggest obstacle appears to be the special relationship between the PRC and the DPRK while in the United States, North Koreans are not generally excluded based on assumed South Korean nationality. It should also be noted that in France, where North Koreans appear to be initially rejected based on the assumption of South Korean nationality, this practice has been challenged by a French court (Wolman 2022).

Tribunals in European countries generally finalize decisions on asylum appeals after having assessed whether applicants can claim citizenship in the ROK. For these countries, North Korean defectors are generally not considered to be refugees sur place—they are recognized as dual nationals by birth who, under Article 1A(2) of the 1951 Refugee Convention, can access the protection of a ‘safe country of origin’. Thus, they do not fall under the jurisdiction of the Refugee Convention and its Protocol (UNHCR 2019). However, it is of interest that a French court has developed an understanding of ‘collective involuntary naturalization’ and recognizes that although North Koreans possess South Korean nationality under ROK domestic law, the imposed nationality should not be considered when evaluating an asylum seeker’s right to asylum (Wolman 2022). This interpretation challenges the opposability of the ROK nationality law and distinguishes itself from the other countries that put ROK nationality as the main basis for rejecting asylum claims.

Furthermore, the Dutch and German courts distinguish between high-ranking defectors and regular defectors, stating that high-ranking defectors or their family members in North Korea might not be sufficiently safe if they were to settle in the ROK. While it may be true that high-ranking defectors could potentially be ‘not sufficiently safe’ in the ROK, the 2016 defection of former ambassador Thae Yong-ho to South Korea exemplifies that South Korea could also be a safe country for high-ranking defectors (Power 2016). Moreover, the case of the family who sought asylum in the Netherlands—while unsuccessful—presents an argument that settling in the ROK also poses risks to “regular” defectors. [32]

For the analyzed European countries, the differences behind the justifications do not appear to be a direct politicized response specific to their relationship with North Korea, but rather shaped by their domestic asylum policy governance. The United Kingdom, Germany, the Netherlands, and France have differing (historic) relations with North Korea but a relatively similar approach toward North Korean refugees. Contrary to the United States, they do not have a specific legal framework outlining the recognition criteria for North Korean asylum seekers and rather administer them under their general refugee laws. Additionally, it must be recognized that the UK hosts the largest number of North Koreans in Europe, who are mainly secondary asylum seekers that have previously made their way to South Korea (Song and Bell 2019). It appears that this phenomenon can only be explained at this stage by transnational networks that helped facilitate North Korean mobility toward the United Kingdom; the genesis of how those networks came to be, however, is a topic worthy of further exploration (Song and Bell 2019). Given that the legal interpretation of their right to asylum in the United Kingdom is similar to other European countries, this cannot be explained by a differing recognition practice.

The United States’ and China’s interpretations of North Korean defectors’ right to asylum are arguably contingent on their relationship with the DPRK. Under the North Korean Human Rights Act of 2004 (NKHRA), the United States generally granted asylum to North Koreans, without considering their right to ROK nationality, which only becomes an obstacle if it has previously been claimed.  U.S. practice under the NKHRA constitutes an understanding that presents nuanced similarities that are seen—to an extent—in France. When reviewing the background of the NKHRA, it is apparent that the U.S. interpretation is strongly influenced by its hostile relationship with the DPRK and Cold War narratives. Moreover, it could be argued that it is difficult to not link the NKHRA to its predecessor bill that utilized the guise of human rights to pursue other U.S. interests on the peninsula (Goedde 2010). As such, it must be noted that the United States has significant military interests in the region, which do not only relate to the DPRK, but also to the broader contemporary geopolitical context in East Asia. 

Meanwhile, as a longtime historic ally of the DPRK, China does not recognize the DPRK as an unsafe place for North Korean refugees to be returned to. Despite international condemnation, through the lens of the PRC, this interpretation could be seen as a loophole for their non-compliance to not only Article 33 of the Refugee Convention, which stipulates the principle of non-refoulement, but also of other international norms, such as the 1984 Convention Against Torture.

Akin to the United States, the PRC approach needs to be understood in the context of Chinese interests on the peninsula given U.S. military presence in South Korea and current geopolitical tensions between China and the United States. Therefore, the practice of China appears to be––similar to that of the United States––shaped by geopolitical military interests and Cold War narratives. 

Moreover, the disparities in interpretation and rationale behind the differences provide insight into the different states’ perceptions of territorial sovereignty in the Korean peninsula. Except for France, all European countries analyzed have diplomatic relations with both South and North Korea. Nevertheless, these countries—in their refugee recognition process of North Korean defectors—seemingly unequivocally recognize the ROK citizenship law that asserts South Korea’s claim over the citizens of North Korea by default. As the law is based on the ROK’s repudiation of the DPRK as a sovereign entity, this presents a contradiction: these countries with diplomatic ties to the DPRK indirectly validate the ROK’s claim of the peninsula by acknowledging the automatic ROK citizenship of North Koreans. It seems as though while they recognize DPRK’s sovereignty, they do not recognize it more relative to ROK’s sovereignty—a sovereignty that ROK is recognized to have over all citizens in the Korean peninsula, so long as they have resided in it within 10 years.


This paper outlined the differences in interpretations of the right to asylum of North Korean defectors in the United Kingdom, United States, Germany, France, the Netherlands, and China and shed light on the justifications and rationales behind those differences. 

The paper concludes that the rationale behind these differing justifications can be explained by the European countries’ focus on their domestic asylum policy doctrines and the United States and China’s focus on their specific geopolitical considerations in the Korean peninsula. It was found, however, that despite their ostensible similarities, when viewed through the historical lens of the case of East German refugees during the Cold War, not much understanding is provided of the North Korean defectors’ case. Nevertheless, Cold War narratives appear to still shape the practice of the United States and the PRC.

Moreover, this paper argues that there might be a contradiction with countries that recognize North Korea as a sovereign state, as they also indirectly validate South Korea’s claims over North Korean territory with their recognition of the ROK law that confers South Korean nationality to all North Koreans. This dual nationality is arguably dispositive in most cases and becomes a loophole for countries to reject asylum applications from North Korean defectors. 

When assessing asylum applications, the humanity of refugees often falls secondary to political concerns. Given the severe human rights abuses reported in North Korea, the consequences that await defectors if deported, and the horrific journeys many endured to reach their destination countries, the acceptance of North Koreans seeking asylum and protection in their territory should be an inalienable right. Their agency with regard to wishing to not be expelled to South Korea—a country they often have minimal ties to and in which they are likely to face severe discrimination—should be respected.  

*This article was edited by Shubhankar Agarwal (American University) and Anusha Natarajan (Columbia University).

About the Authors

Headshot of the author Megumi Faith Mallari

Megumi Faith Mallari is a Master’s student in International and Development Studies at the Geneva Graduate Institute (IHEID) specializing in mobilities, migrations and boundaries. Originally from Davao, Philippines, Megumi completed her undergraduate studies in Political Science and Anthropology at Sophia University, Tokyo where she engaged in digital oral narrative ethnographic research, advocacy, and direct material and social support to asylum seekers in Japan. She has worked with refugee support international organizations and NGOs and is passionate about human rights and humanitarian action, particularly equitable rights-based response, protection, and access to justice for refugees and others forcibly displaced.

Headshot of the author Saleh Naas

Saleh Naas is a Master’s student in International and Development Studies at the Geneva Graduate Institute (IHEID) specializing in mobilities, migrations and boundaries. His research interests are at the intersections of migration, gender, and inequalities. Saleh completed his undergraduate studies at Zurich University of Applied Sciences during which he spent a year at Chung-Ang University in Seoul. He previously worked in policy analysis with a focus on international sanctions and human rights-related trade regulations.


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[1] For this paper, North Koreans that have escaped from the DPRK will be interchangeably referred to as ‘defectors’ and ‘refugees’.

[2] Government official within the Swiss State Secretariat for Migration, email message, October 10, 2023. 

[3] “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” 1987,

[4] AA/02825/2010 & Ors., “Tribunal Decisions,” accessed December 10, 2023,

[5] UK FCO, “Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Korea Concerning the Readmission of Persons,” 2012,…

[6] AA/02825/2010 & Ors., “Tribunal Decisions.” ; KK and Ors, “Tribunal Decisions,” 2011,

[7] AA/02825/2010 & Ors., “Tribunal Decisions.”

[8] KK and Ors, “Tribunal Decisions.” 

[9] UK Legislation, “UK Borders Act 2007” (King’s Printer of Acts of Parliament, 2007),….

[10] “North Korean Human Rights Act of 2004,” accessed October 29, 2023,

[11] 24 I&N Dec. 133 (BIA 2007)

[12] Verwaltungsgerichtshof Baden Wuerttemberg, “Az.: A 8 S 199/04, Flüchtlinge aus Nordkorea müssen Schutz vor Verfolgung in Südkorea suchen,” July 18, 2005,,Lde/….

[13] Verwaltungsgerichtshof Baden Wuerttemberg.

[14] Verwaltungsgerichtshof Baden Wuerttemberg.

[15] Verwaltungsgerichtshof Baden Wuerttemberg.

[16] Cour Nationale du Droit d’Asile, “N°09001713 Audience du 5 avril 2016,” 2016,….

[17] Cour Nationale du Droit d’Asile

[18] Rb. Den Haag, “ECLI:NL:RBDHA:2013:7804, Rechtbank Den Haag, AWB-13_5667,” June 19, 2013,

[19] Rb. Den Haag

[20] Rb. Den Haag, “ECLI:NL:RBDHA:2022:11141, Rechtbank Den Haag, NL22.11563 En NL22.11564,” October 21, 2022,

[21] Rb. Den Haag

[22] Rb. Den Haag

[23] Rb. Den Haag

[24] Raad van State, “ECLI:NL:RVS:2015:1849, Raad van State, 201402886/1/V2,” June 4, 2015,

[25] Raad van State

[26] Raad van State

[27] H.R. 3573 (108th), “Text of H.R. 3573 (108th): North Korean Freedom Act of 2003 (Introduced Version),”, accessed December 10, 2023,

[28] H.R. 3573 (108th), “Text of H.R. 3573 (108th).”

[29] “Council Regulation (EU) 2017/1509 of 30 August 2017 Concerning Restrictive Measures against the Democratic People’s Republic of Korea and Repealing Regulation (EC) No 329/2007” (2017),….

[30] Council Regulation (EU) 2017/1509 of 30 August 2017 concerning restrictive measures against the Democratic People’s Republic of Korea and repealing Regulation (EC) No 329/2007.

[31] Council Regulation (EU) 2017/1509 of 30 August 2017 concerning restrictive measures against the Democratic People’s Republic of Korea and repealing Regulation (EC) No 329/2007.

[32] Rb. Den Haag, “ECLI:NL:RBDHA:2022:11141, Rechtbank Den Haag, NL22.11563 En NL22.11564,” October 21, 2022,


Aldrich, Russell. “An Examination of China’s Treatment of North Korean Asylum Seekers.” North Korean Review 7, no. 1 (2011): 36–48.

BBC. “North Korea: US urges all nations to cut ties,” 2017.

Bell, Markus. “Why Does the UK Deport North Korean Asylum Seekers?” The Conversation, March 1, 2018.….

Chung, Alec. “China–DPRK Relations, China’s Rise, and DPRK Aggressions toward the ROK–U.S., 1990–2021.” Asian Survey 63, no. 5 (July 19, 2023): 797–822.

Cohen, Roberta. “Admitting North Korean Refugees to the United States: Obstacles and Opportunities.” Brookings, September 20, 2011.….

Congressional Research Service. “U.S.-South Korea Alliance: Issues for Congress,” 2023.

Cooper, Helene. “Rice Rebukes U.S. Envoy Who Criticized North Korea Policy - The New York Times,” February 3, 2008.….

Council Regulation (EU) 2017/1509 of 30 August 2017 concerning restrictive measures against the Democratic People’s Republic of Korea and repealing Regulation (EC) No 329/2007 (2017).….

Cour Nationale du Droit d’Asile. “N°09001713 Audience du 5 avril 2016,” 2016.….

Deutsche Welle. “Despite UN Sanctions, Germany Did Research with North Korea – DW – 11/28/2022.”, 2022.….

European Commission. “Common European Asylum System.” Accessed December 11, 2023.….

European Council on Refugees and Exiles. “EAHRNK: North Korean Asylum Seekers Deserve Protection in Europe | European Council on Refugees and Exiles (ECRE).” Accessed December 11, 2023.….

Fitzek, Charlotte. “How British Trainers Quietly Help Shape North Korean Education.” The Diplomat, March 30, 2017.….

German Federal Foreign Office. “Germany and the Democratic People’s Republic of Korea (North Korea): Bilateral Relations.” German Federal Foreign Office, 2022.….

Goedde, Patricia. “Legal Mobilization for Human Rights Protection in North Korea: Furthering Discourse or Discord?” Human Rights Quarterly 32, no. 3 (2010): 530–74.

Government of the Netherlands. “Joint Statement on the Establishment of a Strategic Partnership between the Government of the Republic of Korea and the Government of the Kingdom of the Netherlands - Diplomatic statement -” Diplomatieke_verklaring. Ministerie van Algemene Zaken, November 23, 2022.….
———. “Representations: North Korea - Embassies, Consulates and Other Representations - Government.Nl.” Onderwerp. Ministerie van Algemene Zaken, September 27, 2012.….

Hashimi, Shurooq Al. “From Rhetoric to Posture: A Comparative Study of George W. Bush, Barack H. Obama and Donald J. Trump’s Stances Towards DPRK Nuclear Issue.” Przegląd Strategiczny XII, no. 15 (2022): 351–71.

Hilpert, Hanns Günther. “A Comparison of German and Korean Division: Analogies and Differences.” International Journal of Korean Unification Studies 19, no. 1 (2010): 126–56.

Horak, Sven. “Phases of the Relationship between East Germany and North Korea after World War II.” North Korean Review 6, no. 1 (2010): 100–107.

Human Rights Watch. “Open Joint Letter to President Xi Jinping | Human Rights Watch,” September 21, 2023.….

Kaine, Tim. “Rubio, Kaine Introduce Bill to Reauthorize North Korean Human Rights Act | U.S. Senator Tim Kaine of Virginia,” May 13, 2022.….

Kang, Jin Woong. “Human Rights and Refugee Status of the North Korean Diaspora.” North Korean Review 9, no. 2 (2013): 4–17.

Kelly, Robert Edwin. “Comparing North Korea to East Germany.” East Asia Forum, April 9, 2011.….

Kim, Min-hyung. “Cracks in the Blood-Shared Alliance? Explaining Strained PRC–DPRK Relations in the Post-Cold War World.” Pacific Focus 32, no. 1 (2017): 109–28.

La France en Indonésie, au Timor oriental et auprès de l’ASEAN. “North Korea: France’s position.” La France en Indonésie, au Timor oriental et auprès de l’ASEAN, 2019.

Lawless, Jill. “South Korea’s President Gets Royal Welcome on UK State Visit – The Diplomat.” The Diplomat, November 22, 2023.….

Lee, Whiejin. “The Status of North Korean Refugee and Their Protection in International Law.” The Journal of East Asian Affairs 30, no. 2 (2016): 43–82.

Leftly, Mark. “UK May Ship All N Korean Asylum-Seekers to S Korea.” The Independent, November 28, 2014.….

Levi, Nicolas. “How Paris Became the Favorite European Escape of North Korea’s Elite | NK News.” NK News - North Korea News, February 14, 2023.….

Li, Peter J., and Lucille Y. Li. “The China-DPRK Relations: From Perceived Marginalization to a Spirited Comeback.” East Asia 37, no. 3 (September 1, 2020): 203–21.

Massey, Douglas S. “International Migration at the Dawn of the Twenty-First Century: The Role of the State.” Population and Development Review 25, no. 2 (1999): 303–22.

Ministry for Europe and Foreign Affairs. “France and North Korea.” France Diplomacy - Ministry for Europe and Foreign Affairs, 2020.….

Ministry of Unification. “Settlement Support for North Korean Defectors< What We Do< 통일부_영문.” 통일부, 2023.
Morgan, Alastair. “United Kingdom Engagement with North Korea.” East-West Center, 2023.

O’Carroll, Chad, and Ifang Bremer. “North Korea Protests Denial of Dutch Visas for Women’s Football Tournament | NK News.” NK News - North Korea News, May 29, 2023.….

Office of Foreign Assets Control. “North Korea Sanctions,” November 30, 2023.….

Olsen, Edward A. “U.S.–North Korean Relations: Foreign Policy Dilemmas.” North Korean Review 1 (2005): 63–75.

Park, Jihyun. “North Korean Refugees in the UK.” Right to Remain, June 29, 2015.

Permanent mission of France to the United Nations in New York. “The Human Rights Situation in North Korea Remains Alarming.” France ONU, 2023.….

Power, John. “North Korean Diplomat’s Defection Raises Questions About Regime’s Control.” The Diplomat, August 18, 2016.….
———. “Why Are North Korean Defectors Being Turned Away in Europe?,” June 17, 2015.….

Reuters. “North Korean State Media Slams France for ‘Gunboat Diplomacy.’” Reuters, October 6, 2023, sec. World.….

Roberts, John Benjamin. “Diplomatic Asylum: An Inappropriate Solution for East Germans Desiring to Move to the West.” Temple International and Comparative Law Journal 1 (1987 1985): 231.
———. “Diplomatic Asylum: An Inappropriate Solution for East Germans Desiring to Move to the West Notes and Comments.” Temple International and Comparative Law Journal 1, no. 2 (1987 1985): 231–62.

Schäfer, Bernd. “North Korea and the East German Stasi, 1987-1989 | Wilson Center,” 2017.….

Schäfer, Thomas. “North Korea-Germany Relations: An Ambassador’s Perspective of Diplomacy with Pyongyang.” East-West Center |, March 1, 2023.….

Slachta, Krisztina, and Imre Tóth. “DDR-Bürger als Flüchtlinge in Ungarn, 1961-1989 : Eingeschränkte Reisemöglichkeiten, kontrollierter Tourismus.” Zeitschrift des Forschungsverbundes SED-Staat 49 (2022): 60–89.

Song, Jay Jiyoung, and Markus Bell. “North Korean Secondary Asylum in the UK.” Migration Studies 7, no. 2 (June 1, 2019): 160–79.

“The Swedish Club and Reed Smith LLP.” Accessed December 10, 2023.….

UK FCO. “Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Korea Concerning the Readmission of Persons,” 2012.…

UK Home Office. “Policy and Legislative Changes Affecting Migration to the UK: Timeline.” GOV.UK, November 23, 2023.….

UK Parliament. “Asylum Seekers: North Korea - Hansard - UK Parliament,” 2008.….

UNESCO. “Democratic People’s Republic of Korea | UNESCO.” Accessed November 19, 2023.

UNHCR. “Handbook on Procedures and Criteria for Determining Refugee Status,” 2019.
———. UNHCR. “UNHCR Chief Calls on States to Respect Non-Refoulement after North Koreans Deported from Laos,” 2013.….
———. “UNHCR Seeks Access to North Koreans Detained in China,” 2003.….

United Nations Human Rights Council. “Report of the Detailed Findings of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea,” 2014.…

U.S Department of State. “U.S. Relations With the Democratic People’s Republic of Korea.” United States Department of State (blog), 2021.

Wang, Xingxing, and Jiajia Wang. “How to Make and Destroy a ‘Blood Alliance’? The Ups and Downs of China-DPRK Relations.” Pacific Focus 37, no. 1 (2022): 95–124.

Wertz, Daniel, JJ Oh, and Kim Insung. “DPRK Diplomatic Relations.” The National Committee on North Korea, 2016.

Wolman, A. “North Korean Asylum Seekers and Dual Nationality.” International Journal of Refugee Law 24, no. 4 (December 1, 2012): 793–814.

Wolman, Andrew. “North Korean Asylum Seekers in the West: Is Dual Nationality Dispositive?” Indiana International & Comparative Law Review 32, no. 3 (September 19, 2022): 403–24.