Some want to escape the consequences of Brexit, others feel compelled by Trump to leave the U.S., yet others would like to live and work in the EU: Austrian and German emigrants and their expatriate descendants may now acquire Austrian or German passports – and thus EU citizenship.
The migrant crisis on the islands off the coast of Greece continues to fill the front pages – alas, many European countries, among them the Visegrád (V4) states and Austria in particular, are still highly unwilling to get involved in resolving the issue. And yet, outside the limelight, an inconspicuous legal change in Austria in September 2020 has liberalized Austrian citizenship law in favor of 20th century emigrants. Similarly, Germany turned away from decades of established practice in May 2020 – though in the latter case, it was a judgment by the German Constitutional Court, rather than an amendment to law, which forced the change. In any case, the new regime in both countries may help many who are affected by Brexit or who wish to leave the U.S. under the specter of a Trump reelection (the situation in the Czech Republic, see this article).
As early as in September 2019, Austria decided that emigrants and their descendants have a right to claim Austrian citizenship. The corresponding change made to the 1985 Citizenship Act took force at the beginning of September 2020. The amendment draws a generous timeframe, covering all emigrants who had to leave Austria up until 15 May 1955 (the date on which the Austrian State Treaty was signed and Austria regained sovereignty) due to racial or political persecution or because of their commitment to democratic ideas. In other words, austrofascists and Austrian Nazis who left the country between 1934 and 1938 or after 1945 cannot invoke the new law on citizenship – but Jews and Democrats who had to leave Austria behind up until 1955 can. It won’t be easy to decide on the cases of emigrants who left Austria prior to the Anschluss in March 1938, though even those cases are worth the try to obtain Austrian citizenship.
German law, too, recognizes the right to regain German citizenship. However, eligibility is limited to those who lost German citizenship between 30 January 1933 and 8 May 1945, i.e., the years of the Nazi dictatorship (cf. our article: „The practice of reinstating German citizenship under Art. 116 (2) first sentence of the Basic Law has been unconstitutional for decades“). The claim extends to all descendants. Applications by those who belong to the „survivor generation“ have become exceedingly rare, but they still exist and are treated preferentially; those of others may take up to two years to process. Sadly, German practice was extremely restrictive up until 2019. Things took a turn for the better when the Federal Ministry of the Interior issued decrees at the end of August 2019 based upon which the members of certain categories may be naturalized pursuant to Sec. 14 of the Citizenship Act (StAG) (cf. our first article in the series: „Naturalization of descendants of victims of Nazi persecution under Art. 116 (2) of the Basic Law GG – New decrees by the Federal Ministry of the Interior (BMI) seek to provide redress.“). Because of a judgment by the Federal Constitutional Court of 20 May 2020 (cf. our second article: „The practice of reinstating German citizenship under Art. 116 (2) first sentence of the Basic Law has been unconstitutional for decades“), old cases in which a final decision was already handed down but which are incompatible with the Constitutional Court ruling are now being reopened by the competent authority (i.e., the Bundesverwaltungsamt (BVA) in Cologne) upon a motion to such effect. New applications are already heard with the May 2020 judgment in mind.
New options for prospective applicants from the UK and the U.S.
Overall, it makes sense for UK or U.S. citizens who would like to obtain an EU passport for political or practical reasons (Brexit, Trump, employment in the EU) to go through their records of ancestry and dig up old records and documents (i.e., in particular, birth certificates and wedding certificates – originals will be needed, and will have to be apostilled and be furnished with a certified translation, though Austria and Germany also accept documents in English). For one thing is obvious: an EU passport, whether issued by Austria, or Germany, provides infinitely more rights and security than a mere EU residency permit.
Federal Law, which changes the Act on Austrian Citizenship (1985)
Act on Austrian Citizenship (1985)
Art. 116 clause 2 of the German Constitution (1949)
Act on German Citizenship (of 2000, originally Act from 1913 Coll.)
Decision of the (German) constitutional Court of 20 May 2020 (No. 2 BvR 2628/18)