German Supreme Court ends Discrimination in Citizenship Cases

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).

Legal background:

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 decision:

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.

Links:

About Andreas Moser

Travelling the world and writing about it. I have degrees in law and philosophy, but I'd much rather be a writer, a spy or a hobo.
This entry was posted in German Law, Germany, Law, Travel and tagged , . Bookmark the permalink.

20 Responses to German Supreme Court ends Discrimination in Citizenship Cases

  1. It’s good to see any country correcting outdated laws regarding children of unmarried parents.

  2. Thomas Bernhardt says:

    But this does not apply (or does it) to those that had their citizenship stripped before 1910 based on 10 years out of the country…even if it made them stateless? Köln wants travel documents, passports or border crossing certificates between 1890 and 1910..as proof of continued presence on German property…

  3. Thomas Bernhardt says:

    1914, Is when the law changed…however 1905 would have been the cutoff…for 10 years out of country…or not visiting a consulate…

  4. Sometimes these Procedures are very complex and exhausting to demonstrate that you are a descendant … It is very difficult to find documents😔

    • Oh yes, indeed. Especially when people had to flee, or when they moved a lot, or when archives were destroyed in wars.

      But for you, this decision means that you may not only be Croatian, but also German because of your grandmother. Lots of research ahead!

    • In my case a lot of information was lost due to the war … I hope to get these documents either from my Croatian grandfather or from my German great-grandmother

  5. My grandma automatically lost German citizenship when she voluntarily acquired British citizenship in 1955 by application. That’s where my claim to German citizenship stops. Does that new court ruling that you posted have an impact on this?

    • Hans Estrada says:

      My grandma was ruled as citizenship lost of marrying a Latinamerican in 1935. She didn’t even knew, she was a 20 yr old girl in love with my grandpa. Totally discriminatory, treacherous, and unfair!! Even with the 2019 decrees the discrimination still persists!! Italy repaired their cases, Czechia did, Luxembourg did too.

    • That situation is not changed by this court ruling because all Germans, whether male or female, lose German citizenship when applying for another citizenship without obtaining prior approval from Germany (§ 25 StAG, as always with some exceptions, but not based on gender).

    • Hans Estrada says:

      Andreas Moser, true indeed. Cases like those that Calum mentioned in which a German made a voluntary application to acquire another nationality unfortunately will never be in the scope of any repair mechanism per se, given that they were done under the will and knowledge the person.

    • Calum says:

      Why should German citizens who obtained a foreign European citizenship by application and lost their German citizenship automatically before 28th August 2007 be at a disadvantage to those who obtained a foreign European citizenship after this date and are able to retain German citizenship?

      Surely this goes against article 3 of the Basic Law for the Federal Republic of Germany?

    • I don’t think so, necessarily.

      Art. 3 GG does not mean that whenever a law is changed, it needs to be applied retroactively. For example, if tax rates are lowered, the people who paid taxes in previous years can’t claim a refund. Or if you can now enter university without Abitur, but you couldn’t in 1965, you can’t claim compensation. And so on. Laws change over time.

      In the specific case of § 25 I StAG and the exception for EU citizenship one could also argue that in previous decades, there was no EU citizenship. European integration was not at the level it is at today.

      I personally think that § 25 StAG should be scrapped altogether, but not every silly rule is automatically unconstitutional.

    • Calum says:

      Article 3
      [Equality before the law]

      (1) All persons shall be equal before the law.

      (2) Men and women shall have equal rights. The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist.

  6. Paulo says:

    Hi Andreas, given the court decision is based on the Constitutional articles, do you think it could apply to a German mother who lost her citizenship my marrying a foreigner before 1949 and hence before the Constitution was established?

  7. Some of my American family members somehow also lost their German citizenship, but I don’t know how they managed. I just know one part fled in the 20s to Michigan and the other side (my grandfather’s brother) in the 60s/70s to Illinois/Chicago. I always assume there’s also a religious reason behind it why they fled, also when looking closer at the surname Engelman(n)… 🤷

  8. Barbara says:

    My father is German and my mother Argentinien but i was born in 1985 and my parents married in 1990! :(

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