This is big and it concerns hundreds of you who have contacted me about restitution of German citizenship in recent years. I can’t contact each and everyone individually (my fees are too modest for that, and donations to keep this blog alive are not made as often they should be), hence the following summary of a decision by the German Constitutional Court dated 20 May 2020 (case no. 2 BvR 2628/18).
During the Nazi dictatorship between 1933 and 1945, many people lost their German citizenship due to racial, political or religious reasons. Since 1949, (West) Germany has allowed these former Germans to reclaim German citizenship under Art. 116 II of the German Constitution. The practical relevance now is that this extends to descendants of former Germans, because without the Nazi-era policy, they too would be German citizens.
However, when applying, one has to show that one would have gained German citizenship from one’s ancestors had it not been for the Nazi-era policies. There were always other ways of losing German citizenship (for example by applying for another citizenship or by serving in another country’s armed forces, with exceptions, respectively), as there were limits to German citizenship being passed to the next generation. For example, until 1975, German citizenship could usually only be passed through the father, not the mother. This was clearly discriminatory, but it was not a Nazi-era policy, so it was not rectified under Art. 116 II of the Constitution. (There is another way for these cases, as detailed in no. 8 (a) of my FAQ on getting naturalized as a German citizen without living in Germany. Or, relevant in the present case, until 1993, children born to a German father did not automatically receive German citizenship if the parents were not married at the time (see no. 8 (b) of the FAQ referred to above).
The present case:
A lady was born in the USA in 1967 to a US-American mother. Her father, born in 1921, was deprived of German citizenship in 1938. He had fled to the USA as a Jew. The complainant’s parents were not married. The father recognized her as his child. She applied for naturalization in 2013 in accordance with Article 116 II of the German Constitution. The Federal Office of Administration rejected the application for naturalization. The complainant had been born illegitimate and had therefore not been able to acquire citizenship from her father at that time, regardless of whether he had been deprived of his German citizenship under the Nazis or not.
All her appeals were unsuccessful, until the case came to the German Constitutional Court.
The court ruled that the constitutional complaint was justified.
The interpretation by the German government violates principal values of the constitution as well as special provisions on the equal treatment of children born out of wedlock (Art. 6 V of the Constitution) and equal treatment of men and women (Art. 3 II of the Constitution).
The court focused on the definition of “descendant” and criticized that the lower courts had stuck to the strict wording of the Citizenship Act without taking into account the values posited by the Constitution (and by the European Charter on Human Rights). Although it’s legally logical to apply previous versions of the Citizenship Act to people born when these versions of the law were in place, the court ruled that henceforth the previous discrimination must not be perpetuated.
What does this mean?
Because the Constitutional Court explicitly referred to the equality clause regarding the German parent, not only the child in question, I would think that this reasoning also applies to the many cases of people born to German mothers before 1975.
This case was a restitution case under Art. 116 II of the Constitution, but I don’t see why the same reasoning should not be applied to other descendants of German mothers or fathers, who do not fall under Art. 116 II of the Constitution, but who applied under the Citizenship Act.
It also means that anyone who ever had their case appraised and was told that it’s not worth to pursue it, should probably have it reappraised in light of this decision. There are now many more people out there who are entitled to German citizenship (or who already have it, often without knowing it).
However, it also means that there will be even more applications, and it will take the German government even longer to process them.
- More on German law.
- Something for those who doubt that Germany even has a constitution (yes, there are such wackos).
- If you have benefited from this information or from any of my articles in the past, I would appreciate some support for this blog. I am putting a lot of time into providing this information to the public, where other lawyers charge thousands of euros.