After the hype and cheers following the announcement of Germany’s making it easier for descendants of people persecuted during the Nazi rule to naturalise, we took a closer look into what’s actually changed and must say – not much.
The Problem / The Restoration Complication
Under Article 116 II of the German Grundgesetz (Basic Law), any descendant of a person deprived of German citizenship due to Nazi persecution is entitled to restoration, but only if the descendant would have been considered German under German law, had the deprivation not taken place.
The German authorities have no discretion in the matter and once the applicant proves that there was German citizenship in his/her ancestry and that this was revoked during the Nazi era, citizenship must be granted. Reason being, as had deprivation not taken place, he/ she would be considered a German national today.
However, many such descendants were to date excluded from naturalisation, because the original German citizen was their mother and they were born before April 1, 1953 or in case of a German grandmother, their mother or father was born before said date.
And even if born after said date, descendants were excluded from naturalisation because their mother or grandmother lost her German citizenship due to marriage to a foreign national, in many cases after having fled from Nazi Germany.
In other words, these people would not have been considered German nationals today, had the deprivation of citizenship not taken place. And in such cases the German authorities have no discretion either. Their applications under Article 116 II Grundgesetz must be denied.
The New Decree
Contrary to common belief and understanding, the above regulation has NOT been amended. Naturalisation under Article 116 II and the circumstances, under which it can be achieved, remain absolutely unchanged!
The German law makers have instead issued a directive which would grant those applying for naturalisation under Paragraph 14 of the Nationality Law under the above circumstances a somewhat privileged status, as can be seen in the press release of the German government of August 30, 2019.
The key difference between Article 116 II of the Grundgesetz and Paragraph 14 of the Nationality Law is the fact that the latter is in the full discretion of the German Bundesverwaltungsamt.
Under normal circumstances, an applicant for such discretionary naturalisation would have to
- Show close ties to Germany, be it by holding assets, insurances, memberships in German associations, having grown up, studied or worked there;
- Prove that he /she could support and sustain him/herself in Germany and would have the financial means to do so;
- Has sufficient knowledge of the German language, culture, social structures and way of life to be able to integrate into German society;
- Show that Germany has a public interest in his/her naturalisation.
Proof of the above would have to be presented to a member of the consular department at the relevant German embassy or consulate who would then send the paperwork to the Bundesverwaltungsamt, together with his/her recommendation. The demand for public interest is particularly tricky, if not impossible to fulfil. Such interest would apply, for instance, in the case of high profile football players or other athletes Germany would want to see competing under her flag.
With regards to the group of people excluded from naturalisation under Article 116 II GG, the new decree now states that they shall receive a privileged status under Paragraph 14 of the Nationality Law inasmuch as the demand for close ties to Germany can be met by showing the descent from a formerly German grandmother or mother who lost her citizenship during the Nazi era. The requirement for proof of ability to support and sustain oneself in Germany has been dropped entirely, as has the demand for public interest.
What has remained is the demand for “a basic level of German, and basic knowledge of the legal and social order and the living standards prevailing in Germany” as stated by the German government in their recent press release. It is further explained that “applicants would not have to take a test, but simply meet with a member of staff in person at the relevant diplomatic representation abroad, who will determine that the requirements have been met.”
And Now What?
At this stage, the exact meaning of “basic level” is rather unclear. Like with all discretionary matters, what may be sufficient for one consular clerk may not be sufficient for his colleague.
With certainty, we do know petitions of applicants unable to speak any German and without any knowledge regarding the social order and the living standards prevailing in Germany, will not be granted.
This will unfortunately rule out a rather large percentage of the people prematurely celebrating that they could be naturalised.
As this sort of petition also requires a personal meeting at the embassy or consulate, we are anticipating long waiting lists for these interviews.
And because we are dealing with a discretionary petition rather than a petition that must be granted, if all the requirements are met, we very strongly suggest that potential applicants have all the documents ready in order to irrefutably prove that there was German citizenship in the family and that the applicant is a descendant of the respective former citizen.
We are happy to help obtain the necessary documentation from Germany and advise our clients how to prepare for their interviews. However, here at GCR we must express our disappointment with the slight scale of change introduced by the German government. Of course, the decree is a step in the right direction. But out of all possible steps that could have been taken, it is by far the smallest.
Having said that, it is a result of an ongoing project I am personally invested in, to seek just compensation and restoration of citizenship for every descendant of a former German citizen, under Article 116 II Grundgesetz and without discretion.