Tarik Tabbara (Berlin School of Economics and Law)
On 17 June 2020, a decision was published of the German Constitutional Court concerned with the access to German citizenship for a descendant of a Jewish German who had been stripped of his German citizenship by the Nazis. This decision by a three-judge chamber came as a surprise. And as a pleasant surprise for the offspring of those who have been persecuted by the Nazis. The chamber decision found that a long established, rather narrow naturalisation practice vis-à-vis the offspring of those who have been robbed of their German nationality by the Nazis was unconstitutional.
The Case and its Background
According to Article 116 para. 2 of the German Basic Law, former German citizens who between 30 January 1933 and 8 May 1945 were deprived of their citizenship “on political, racial or religious grounds” have a right to have their citizenship restored. This applies as well to their descendants. In this case, a woman who is a US citizen applied for German citizenship relying on Art. 116 para. 2 of the German Basic Law. She was born in 1967, of a mother with US citizenship and of a father who had escaped Nazi Germany and had been stripped of his German citizenship in 1938 because he was Jewish.
Her application for German citizenship was declined by the administration and this decision was upheld by two administrative courts. This was quite in line with the general legal treatment thus far of cases like this. The rationale for this is a rather formalistic understanding of reparation in the area of citizenship. According to this understanding descendants are only entitled to German citizenship if they would have acquired German citizenship if their ancestor(s) had not been deprived of their German citizenship. Whether a descendant would have acquired German citizenship was – until the new decision by the German Constitutional Court – thought to be governed by the legal provisions of the citizenship law at the time of birth of the descendant. This is precisely where the problem lay in this case, as the parents were not married at the time of her birth, even though the father had recognized her as his child. But in 1967 the German citizenship law did not grant German citizenship to children of German fathers born out of wedlock, even if they had been recognized. Basically, the law remained unchanged until 1993. The hypothetical test for acquiring German citizenship seems somehow bizarre. It suggests that it is possible to pretend that the Nazis had not taken away the German citizenship of their ancestors without taking into account that biographies very likely would have been quite different and also their access to German citizenship if their ancestors had not had to leave Germany to save their lives.
The Court Reminds German Citizenship Practice of the Constitutional Task of Reparation
In a well-reasoned decision, the chamber rejected this narrow hypothetical test that had been applied for decades by the administration and the administrative courts with little criticism by legal academics. Doctrinally, the chamber relied on two special non-discrimination guarantees of the German constitution: The equal treatment guarantee for children born out of wedlock (Article 6 para. 5 German Basic Law) and the provision on the equal treatment of men and women (Article 3 para. 2 German Basic Law). The chamber argued that those non-discrimination guarantees of the constitution have to be taken into account when the courts interpret the meaning of “descendants”. While putting emphasis on the non-discrimination principles, the chamber relies extensively (for the first time in a citizenship case) on the jurisprudence of the European Court of Human Rights, especially the case of Genovese v. Malta.
The chamber also referred to the rationale of reparation within the area of citizenship law in order to construe “descendants” in a generous manner. Here the chamber used very clear language to criticize the overly formalistic practice in the past. Though the German authorities cannot undo what the Nazis have done, the chamber pointed out, it is the aim of the constitution to compensate as far as possible what has been done to those who have been deprived of their citizenship. And to apply laws, even if only “hypothetically”, that have been found (though not necessarily already at the time of their enactment) to be contrary to the constitution because of their discriminatory effects could not be justified since their application would still have discriminatory effects today.
Will the Decision Change a Half-hearted New Practice?
The reasoning of this decision is obviously not limited to the case before the chamber but could be applied to several other fact situations in which access to citizenship by Article 116 para. 2 German Basic Law was until now denied since the descendants concerned failed the hypothetical test because of gender discrimination in former citizenship laws:
- children born in wedlock before 1 April 1953 to German mothers whose citizenship had been revoked and non-German fathers;
- children whose German parent had acquired foreign citizenship and lost their German citizenship amid National Socialist persecution, including children whose mothers emigrated as a result of persecution and lost their citizenship prior to 1 April 1953 by marrying a non-German man.
The date of 1 April 1953 is/was relevant because Article 117 of German Basic Law allowed gender discrimination to be left in place until then.
The German Federal Ministry of the Interior issued two decrees last summer that cover these cases as well as the one that was dealt with in the case before the chamber. These administrative regulations were a reaction to increased numbers of applications in connection with Brexit. The decrees do not concern or apply to Article 116 para. 2 of the German Basic Law. They only make it easier to apply for naturalisation under Section 14 of the German Nationality Act (§ 14 Staatsangehörigkeitsgesetz) for discretionary naturalisations from abroad. Other than in cases of citizenship granted by the constitution, applicants still have to meet some requirements e.g. basic German language skills, no criminal record and a pledge of allegiance. Though these requirements are not very high, descendants still find it discriminatory and a deterrent that German citizenship is not granted unconditionally in contrast to the case of claims made under Article 116 para. 2 of the German Basic Law.
There are good reasons to apply the reasoning in the chamber’s ruling to all these cases. And there are other cases, that are not even addressed in these two decrees, which could draw some political backing from this decision and its non-formalistic approach to reparation. Groups that have been addressed by – so far unsuccessful – bills put forward by the opposition parties, in particular Jews and their descendants who had lived sometimes for generations in Germany but who never had a chance to become German because of discriminatory naturalisation laws at the time and who were forced to flee just like Jews with German citizenship.
Phasing out reparation?
And there is the new problem of phasing out reparation in the area of citizenship law. With the German citizenship law reform of the year 2000, a so-called generational cut-off point was introduced. This means that children born abroad to a parent from whom German citizenship might be derived, and who themselves were born abroad after 31 December 1999, can only acquire German citizenship if (basically) birth of the child is entered in a German birth register within one year. Though it is quite questionable whether the generational cut-off point applies to the descendants of those who have been deprived of German citizenship by the Nazis, the competent Federal Office of Administration, applying the formal hypothetical test, is of the opinion that it does: “This means that descendants born in the first generation after 31 December 1999 will be the last ones to stand to benefit from facilitated naturalization.” Here again one should hope that a close reading of the chamber’s decision will make clear that the constitution’s commitment to reparation must not and cannot be phased out by the legislator without changing the constitution. This is especially the case if the phasing out occurs only indirectly through a hypothetical application of a registration requirement that cannot be met by parents who are not German.
Taking into account previous German citizenship practice, not only in this very sensitive area, it is not at all clear whether the chamber’s decision will be applied generously as it was obviously meant to be. In any case the German Constitutional Court, while striking down a long-standing practice, has sent a very strong signal concerning reparation in the area of citizenship law. If it is not taken up by the administration, it is for the legislator to make sure that the spirit of this decision will make a difference in the actual practice to the benefit of the descendants of those who have been persecuted by the Nazis.