Skipping the addition or summary and going straight to the main point.
A high school student (male), A, was born to a Korean mother and a Luxembourg father. Born in Luxembourg, he has grown up there as a Luxembourg national. His Korean mother, B, did not register his birth in Korea. As a result, A became a pure foreigner, acquiring only Luxembourg nationality. B inquired to me whether it is possible for A to obtain an F2 visa issued to minor children of nationals or an F4 visa issued to overseas Koreans.
First, let's examine the guidelines.
Guidelines related to the residence (F-2-2, national's minor child) visa issuance and status change
- Issuance and status change of residence (F-2-2) visa for minor foreign children of nationals
※ Excluded persons: Those restricted from being granted overseas Korean (F-4) status
※ Persons who have renounced or lost Korean nationality without fulfilling or being exempted from military service are restricted from being granted residence (F-2-2) status until December 31 of the year they turn 40
→ This applies to those who renounced or lost their nationality for the first time after the law's implementation date (May 1, 2018).
(For those before April 30, 2018, the previous restrictions on granting overseas Korean (F-4) status apply.)
Many are aware that men who renounce or lose their nationality due to military issues after May 1, 2018, are not granted an F4 visa, known as the black-haired foreigner visa, until they turn 40.
This applies to the F2 visa (F-2-2) issued to a national's minor child.
Based on the guidelines, it seems A might be eligible, thanks to his Korean mother not registering his birth. Since A never had Korean nationality, he is a pure foreigner and appears not to be affected by these restrictions.
However, it's not a matter to be judged solely by guidelines. There is a hierarchy in law with the Constitution at the top, followed by laws. External guidelines without binding force from the headquarters, if conflicting with laws, are overridden by the laws.
Here is Article 2 of the Nationality Law
Nationality Law Article 2 (Acquisition of nationality by birth)
① A person falls under any of the following items acquires Korean nationality at birth
1. At the time of birth, either parent is a Korean national
2. If the father died before the child was born, and the father was a Korean national at the time of his death
3. In cases where both parents are unclear or stateless, a person born in Korea
② A foundling discovered in Korea is presumed to have been born in Korea
As seen, regardless of whether the Korean mother registered the birth, A acquired Korean nationality at birth.
Reporting a child's birth is not a choice but an obligation. Even if B was unaware, she is at fault for neglecting to register A's birth and is subject to a fine.
Article 44 of the Act on the Registration, etc., of Family Relations (Registration of Birth)
①The report of birth must be made within one month after birth.
Thus, A is ineligible for both F2 and F4 visas.
B failed to fulfill her obligation to register the birth, so they must return to the beginning and register the birth first.
If A does not want to renounce his Luxembourg nationality, he must renounce his Korean nationality, which means F2 and F4 visas will not be issued due to military issues.
And one must fulfill the obligation of nationality selection as a person with congenital dual nationality. Naturally, if one chooses South Korean nationality, military service is mandatory, and even if one wishes to maintain dual nationality, military service is still required.
After explaining the situation, B, looking utterly bewildered, asked me again.
B was dismayed and asked if there was another way to bring her child to Korea. I replied, "Being restricted from F2 and F4 visas doesn't mean all visas are restricted. There is a D-4-3 visa for foreign students in high school or lower. Since the child hasn't graduated from high school and needs to graduate anyway, I recommend obtaining a study visa (D4) to graduate from high school in Korea first."
B agreed, and we proceeded with the D-4-3 visa application.
For the eligibility criteria and required documents for the D-4-3 visa, please check the link below.
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