Changes to Article 116 German Citizenship Law
After the excitement surrounding Germany’s announcement that it would make naturalisation easier for descendants of those persecuted during the Nazi era, we took a closer look at what had actually changed – and found that, in reality, very little had.
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. Once the applicant proves that there was German citizenship in his or her ancestry and that this was revoked during the Nazi era, citizenship must be granted. The reason is that, had the deprivation not taken place, he or she would be considered a German national today.
However, to date many such descendants were excluded from naturalisation because the original German citizen was their mother and they were born before 1 April 1953. In the case of a German grandmother, the exclusion applied if their mother or father was born before this date.
Even if they were born after this date, descendants were still excluded from naturalisation because their mother or grandmother lost her German citizenship through marriage to a foreign national, in many cases after having fled Nazi Germany.
In other words, these people would not have been considered German nationals today had the deprivation of citizenship not taken place. In such cases, the German authorities have no discretion either. Their applications under Article 116 II Grundgesetz must therefore be denied.
The New Decree
Contrary to common belief and understanding, the above regulation has NOT been amended. German naturalisation under Article 116 II and the circumstances under which it can be achieved remain absolutely unchanged!
The German lawmakers have instead issued a directive that grants those applying for naturalisation under Paragraph 14 of the Nationality Law in the aforementioned circumstances a somewhat privileged status, as outlined 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 that the latter is within the full discretion of the German Bundesverwaltungsamt.
Under normal circumstances, an applicant for such discretionary naturalisation would have to:
- Show close ties to Germany, for example by holding assets, insurance policies, memberships in German associations, or by having grown up, studied or worked there;
- Prove that they could support themselves financially in Germany;
- Demonstrate sufficient knowledge of the German language, culture, social structures and way of life to integrate into German society;
- Show that Germany has a public interest in their 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 their recommendation. The requirement 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 its flag.
With regard to the group of people previously excluded from German naturalisation under Article 116 II GG, the new decree states that they will now receive a privileged status under Paragraph 14 of the Nationality Law. This means the requirement to demonstrate close ties to Germany can be satisfied by proving descent from a formerly German grandmother or mother who lost her citizenship during the Nazi era. These cases often involve families seeking to restore German citizenship through their ancestry. The requirement to prove the ability to support oneself financially in Germany has been removed entirely, as has the requirement to demonstrate a public interest in the applicant’s naturalisation.
What has remained is the requirement for “a basic level of German and basic knowledge of the legal and social order and living standards prevailing in Germany”, as stated by the German government in its 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 whether the requirements have been met.”
What This Means for German Citizenship Applications
At this stage, the exact meaning of “basic level” remains rather unclear. As with all discretionary matters, what may be sufficient for one consular official may not be sufficient for another.
What we do know with certainty is that petitions from applicants unable to speak any German, and without any knowledge of the social order and living standards prevailing in Germany, will not be granted.
This will unfortunately rule out a significant number of people who may have prematurely celebrated the prospect of naturalisation.
As this type of petition also requires a personal meeting at the relevant German embassy or consulate, we anticipate that waiting lists for these interviews may become quite long.
As this is a discretionary petition rather than one that must be granted once the requirements are met, we strongly recommend that potential applicants prepare all relevant documents in advance. This will allow them to clearly demonstrate that German citizenship existed within the family and that the applicant is a descendant of the former German citizen.
We are happy to help obtain the necessary documentation from Germany and advise our clients on how to prepare for their interviews. However, here at German Citizenship Restoration we must express some disappointment with the limited scale of change introduced by the German government. The decree is certainly a step in the right direction, but of all the possible steps that could have been taken, it is by far the smallest.
That said, it represents progress in an ongoing effort to secure fair compensation and the restoration of German citizenship for every descendant of a former German citizen under Article 116 II Grundgesetz, without discretion.