By EUDO Citizenship expert Anuscheh Farahat
The ‘option model’ in German nationality law has been highly disputed ever since its introduction in January 2000. Under the ‘option model’ children of foreign parents may acquire German nationality if they are born in Germany. However, this ius soli is conditional upon two requirements. At least one of the parents must have had habitual legal residence in Germany for at least eight years and he/she must either possess a permanent residence permit or have exercised freedom of movement as an EU citizen. If both conditions are fulfilled, children of such parents acquire German nationality in addition to the nationality acquired by decent. However, their status as German citizens is precarious. Unlike the children of bi-national couples (consisting of one German and one foreign national), who acquire both nationalities by descent, between the age of eighteen and twenty-three the children of two foreign nationals are required to renounce their foreign nationality in order to keep the German one. This is because when ius soli was introduced for the first time ever in 2000, the new law did not abandon the principle of avoiding multiple nationalities. As a consequence, the nationality status of thousands of young Germans remains uncertain, since they lose their German citizenship automatically if they do not prove that they have renounced their foreign nationality. Moreover, even when they opt for the German citizenship, they often face severe bureaucratic obstacles and financial burdens in proving the renunciation of their foreign nationality. Many migration lawyers have since criticised the model for creating a second-class nationality status for children of immigrants and thereby denying them full inclusion into the German society. It has been argued that the ‘option model’ violates Articles 3 of the German Constitution (Grundgesetz), because it disadvantages ius soli children compared to children of bi-national couples (Wallrabenstein 1999:223; 2008:5). Moreover, it is debatable whether the ‘option model’ is compatible with the jurisprudence of the ECJ on EU citizenship, particularly the conditions for loss of EU citizenship set out in the Rottmann case (C-135/08). Some migration lawyers have argued that the automatic loss of the German passport in cases where the ius soli child either does not declare anything or cannot prove the renunciation of the foreign nationality is disproportional and not compatible with EU law (Lämmermann 2012: 79).
Fourteen years after its invention, it seemed as if the ‘option model’ was about to disappear when the new German government signed their coalition agreement in autumn 2013. The social-democrats intended to allow for multiple nationalities in general, both in cases of birthright acquisition and of naturalisation. In contrast, the two Christian parties (CDU and CSU) were against any changes of the current legislation. According to the compromise they reached, the current naturalisation rules will be left untouched, but the duty to opt between the German and foreign nationality will be abolished for children who ‘were born and raised’ in Germany. Thus, multiple nationalities will thereby be accepted for most ius soli children. However, soon after the new government took office the coalition partners started an argument about the meaning of ‘born and raised in Germany’. The representatives of the CDU and CSU claimed that only children who demonstrate a particular link to the German society should be allowed to keep both nationalities. Finally, the coalition agreed upon a draft bill according to which the ‘option duty’ will be waived for children of immigrants born in Germany who have either eight years of residence in Germany before turning twenty-one or have attended a German school for at least six years (while the residence requirement for the parents remain the same). To be more inclusive, the law would treat graduation from a German school and completion of professional education in Germany as sufficient. In cases when none of these criteria can be fulfilled, a ius soli ‘child’ may be able to prove a comparable close link to Germany, on the condition that the duty to opt would impose a particular hardship in the individual case. Accordingly, the citizenship administration will have to decide on a case by case basis whether the children are exempted from the ‘option duty’ and can keep both citizenships.
The German government considers this legislative proposal as an important step toward the acknowledgement of factual ties of children who have spent most of their childhood in Germany. According to it, the goal to avoid multiple nationalities shall give way to that of full integration of persons who have been born and raised in Germany. An estimated number of 40,000 young Germans per years will benefit from the new regulation as from 2018. Hence, if the bill is adopted as introduced this would clearly improve the situation of the vast majority of ius soli children.
However, given the heated debate on multiple citizenship and integration over the last years, it does not come as a surprise that the new bill was met with immediate criticism from judges and migration lawyers. The parliamentary opposition criticises the remaining bureaucratic hurdles and costs associated with the examination of the criteria for being raised in Germany. Immigrant groups, such as the Turkish Community in Germany (Türkische Gemeinde), are concerned that children of immigrants are only half-heartedly welcomed and still face symbolic hurdles on their way to full and equal membership. The New Association of Judges (Neue Richtervereinigung) argues that an outright abolition of the ‘option model’ would have been preferable and would have removed uncertainties and second-class nationality altogether. Finally, church representatives argue that the preservation of the ‘option model’ is a challenge to legal equality and poses serious problems during the identification process of young Germans.
German migration law has improved a lot over the last decade. Most importantly, the new residence act (Aufenthaltsgesetz) of 2005 views every immigrant as a potential permanent resident, independently of the purpose of an immigration status (protection as a refugee, qualified worker, family member etc.). Thus, every immigrant may – in principle – become a permanent resident after five years and eventually qualify for naturalisation, which is a significant improvement from before 2005, when only some immigration status allowed the acquisition of a permanent residence permit. Even though this was an important step toward acknowledging the fact of being an immigration country for decades, many provisions in German citizenship law still embody the conception that acquisition of nationality by immigrants and their children presupposes social ties and constitutes a reward for successful integration. This conception seems rather outdated, given the fact that we live in a century of increased mobility and also given the need for more immigration for economic reasons. Moreover, international law, and in particular the European Convention on Nationality, has abandoned the principle of avoiding multiple nationalities long ago and developed new tools for dealing pragmatically with potential conflicts in case of multiple nationalities (such as military duties or electoral rights). Even in Germany itself more than fifty percent of the naturalised citizens already can keep their original nationality. Finally, nationality has long lost its crucial role for conveying citizenship in a broader sense: political participation, social protection and even protection against expulsion are also available on the basis of an immigrant status, often depending on the duration of residence and the social ties, but not necessarily on nationality.
The German government was very close to making an important step to finally dispose of the outdated understanding of nationality as a reward for integration in favour of a modern and inclusive regulation of citizenship. With the current proposal, the coalition holds on to the highly symbolic link between proven integration and acquisition of nationality instead of using full membership as a tool to empower and thereby include children of immigrants at the earliest possible moment. Moreover, it is debatable whether the proposed bill is compatible with the ECJ jurisprudence on EU citizenship. One could argue that the new regulation indirectly restricts the freedom of movement, since the applicability of the duty to opt may result from exercising the right to free movement, a core element of EU citizenship. Of course, the new law will definitely improve the situation of many young adults who won’t have to make the difficult choice between two nationalities any longer. Moreover, the proposed bill will enhance the certainty of the status of ius soli children by allowing them to request an early statement that they fulfil the criteria for exemption from the ‘option model’. Consequently, the new bill certainly makes an important step toward tolerating multiple nationalities in general. However – as always in this matter – it is characterised by symbolic requirements and an exaggerated concern for loyalty. This is even more apparent in comparison with the children of bi-national parents who may keep their dual nationality even if they were neither born nor raised in Germany. Actually, even in symbolic terms, the option model is self-defeating as any child to whom it applies can opt for German nationality even if it has only been born, but not raised in Germany at all. Hence, loyalty and actual bonds may not be things that can be ascertained by the exercise of the duty to opt or by the attendance of a German school. The new bill, however, does not dispense of this redundant understanding of nationality and loyalty. Instead it introduces an ‘option model’ light, which – admittedly – will only be applicable to few cases in the future, but which nonetheless sends the message that citizenship must be earned – at least for some!
Sources:
F. Lämmermann, Unionsbürgerschaft und Optionspflicht – ein Widerspruch?, Zeitschrift für Ausländerrecht und Ausländerpolitik (ZAR) 2012, p. 75-80
A. Wallrabenstein, Das Verfassungsrecht der Staatsangehörigkeit (1999)
A. Wallrabenstein,
The commentary is reproduced also in the Verfassungsblog.
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