By Christal Morehouse, Bertelsmann Stiftung, Germany

As the Federal Office for Migration and Refugees prepares to publish a report this spring on so-called “Option Children”, it is really the country’s dual nationality regulations that must pass a “stress test”.

The Option Children are a growing group of dual citizens under the age of 23 who were born in Germany to foreign parents and acquired their German nationality through ius soli regulations. These conditional ius soli rules were introduced by the 2000 Nationality Act. Yet the same act also generally limits dual citizenship, which is only allowed in exceptional cases. Consequentially, Option Children receive German and one or more additional citizenships at birth but are required by law to renounce all non-German citizenships by their 23rd birthdays. The German government will otherwise revoke their German citizenship. There are currently more than 400,000 Option Children (read more). The first cohort will reach the age of 23 in 2013, at a time when the country is experiencing very low naturalisation rates (the so-called “Einbürgerungsquote” which measures the ratio of people who have naturalised as compared with the country’s legally resident non-German population) of just over 1% in recent years (read more).

In contrast to the Option Children, a child born to a German and a non-German parent is not required to renounce dual or multiple citizenships to retain German nationality. Since this child would have received German nationality through ius sanguinis (not through ius soli) regulations, he or she can keep multiple citizenships for life. This ius sanguinis regulation is rooted in a 1974 Federal Constitutional Court ruling which determined that not only men, but also women must equally be allowed to pass on their citizenship to their children (born in wedlock) (see BverfG 21.5.1974 – 1 BvL 22/71 and BverfGE 37, 217-265). As a consequence, the principle of avoiding dual nationality was subordinated to the principle of gender equality.

 
A look at Germany’s track record on the prohibition of dual nationality in cases of naturalisation reveals a contradiction between policy aims and practice. The majority, some 53 percent, of people who have become naturalised German citizens in recent years became dual nationals. Part of this is explained by two exceptions to the ban on holding more than one passport. First, all EU citizens are allowed to hold multiple passports according to German law. Second, nationals from countries that do not allow the renunciation of citizenship can be naturalised as dual citizens (for a complete list of exceptions see the Nationality Law).

However, the variation among countries regarding the rate of dual nationality is large and cannot be fully explained by the exceptions contained in the 2000 Nationality Act. In 2010, for example, naturalised German citizens from Turkey (27.7 percent), Croatia (10.9 percent) and China (5.7 percent) had relatively low rates of dual nationality as compared to those from America (88.8 percent), Australia (89.9 percent) and New Zealand (91.7 percent) (read more).

To understand these differences, two other issues must be considered. First, the citizenship policy of the second, non-German passport-issuing country may forbid dual nationality (e.g. China). Second, article 116 of Germany’s Basic Law allows for the “restoration of citizenship” for individuals who were deprived of German nationality by the National Socialist regime, and for their descendants. Article 116 was the basis for the vast majority of German-American and German-Australian naturalisations in 2010. In the same year, for individuals from Turkey and Croatia this issue did not affect the rate of dual citizenship, which helps explain the comparatively low rate in those cases.
What at first glance looks like a system that disadvantages certain countries over others by design has a variety of underlying causes. The variation in the rate of dual nationality by country is the result of exceptions that may relate to historical or humanitarian factors, or that arise from Germany’s interpretation of European Union laws. Clearly, a factor in dual citizenship naturalisation rates is the nationality policies of the various countries of origin, which may or may not permit dual nationality; origin countries may also not allow the renunciation of nationality. The exceptions in German law to multiple citizenships are based on the general principle that multiple citizenships are to be avoided, and this principle is applied most stringently to ius soli citizens. Option Children and naturalised citizens who are able to renounce their non-German passport and can do so without undue duress should become German only.

The limited choice granted to Option Children as compared with ius sanguinis dual citizens has led some to question the fairness of the current system. For example, does treating ius soli nationals different than ius sanguinis citizens conform with Article 3 of German Basic Law, that prohibits discrimination based on origin or descent? After all, the only difference between these two “types” of citizens is their descent.

So in what sense could the German government’s review of Option Children become a “stress test” for the country’s dual citizenship policies? It will put the spotlight on the country’s policies and principles surrounding dual citizenship and may raise questions regarding the fairness and logic of these policies. First, German policymakers have struggled with very low naturalisation rates of just over 1% in recent years, at a time when the government is tracking this rate as an indicator of integration and has set the goal of increasing it. Second, the government faces a cohort of over 400,000 young people who could decide to renounce their German passports over the next decade if they are forced to choose only one nationality by the German government. This could potentially increase Germany’s permanently resident foreign population by a significant amount, to a degree that would be unprecedented in modern democracies. Third, current laws do not allow German citizens the same “options” regarding dual nationality; rather they privilege ius sanguinis citizens over ius soli nationals. Fourth, the country’s principle of limiting dual nationality has applied to a minority (not the majority) of naturalisations in recent years. The renunciation requirement in ordinary naturalisations is waived for EU citizens but also in cases where renouncing a previously held nationality is impossible of involves excessive burdens. And finally, the large variation by country in the rate of dual nationality could lead some to mistakenly assume that citizenship policy in Germany favors some third-countries over others.

The outcome of this “stress test” on Germany’s dual citizenship policies will certainly impact the hundreds of thousands of young Option Children who by 2013 will be forced to make a difficult decision not only about their citizenship, but about their identity. It may challenge society as a whole to rethink what it means to be German.