New decrees by the German Federal Ministry of the Interior make amends for Nazi injustice.
Through two decrees which came into force on 29 August 2019, the Federal Ministry of the Interior, Building and Community (BMI) seeks to close an open gap in both the law and in administrative practice which has made itself felt for decades: pursuant to Article 116 (2) of the Basic Law (i.e., the Constitution of Germany), former German citizens who were „stripped of their German citizenship on political, racial, or religious grounds“ and all their descendants may bring an application for naturalization. From the 1970s onward, this right was rarely exercised, though there still occurred between 1000 and 5000 naturalizations in every year in the period 2000 – 2017. Administrative practice was extremely restrictive from the get-go, presumably also because the interior ministry remained infested with Nazi bureaucrats from the old-boy network until the end of the nineteen-sixties (today, applications pursuant to Art. 116 (2) of the Basic Law are handled by the Federal Office of Administration in Cologne). For instance, Nazi refugees and their descendants who had taken on the citizenship of their host country were assumed to have automatically lost German citizenship (as opposed to having been stripped of it within the meaning of Art. 116 (2)). In countless cases, e.g. children born out of wedlock, children of a mother who married a foreigner, etc., the standard ruling was to deny a claim pursuant to Art. 116 (2) of the Basic Law by arguing that even if (for instance) the grandmother’s status as a German citizen were to be restored, this would have conferred no German citizenship on her defendants under the 1913 Nationality Law of the German Empire and States (Reichs- und Staatsangehörigkeitsgesetz – RuStAG). Bureaucratic hurdles were put up to deter all those who had lost their families in the Holocaust or their documentation in the vagaries of a world war. All in all, practice in this area was, and to this day remains, an ugly stain on the reputation of German federal administration.
The number of applications exploded in the wake of the Brexit referendum: second-generation and third-generation descendants of Jews who’d escaped to Great Britain (but also other countries such as Israel, Australia, the U.S., etc.) have a rather unprejudiced and relaxed attitude towards Germany – and a keen interest in a German passport (which is at the same time an EU passport). In 2015, a mere 43 British Jews who were descendants of German refugees applied for a German passport, but in 2017 this number soared to 1667 – an increase by 4000%! The legitimate interest of the applicants is to continue to enjoy the European fundamental freedoms – especially the freedom of establishment – even after the United Kingdom has left the EU. They also perceive the restitution of German citizenship as a belated reparation for the injustice suffered by their grandparents.
Awareness was stirred up in particular by the „Article 116 Exclusion Group“ (https://www.article116exclusionsgroup.org/), founded by Felix Couchman, a UK lawyer, himself a descendent of Jewish grandparents and their minor daughter, who had escaped from Wiesbaden to England in 1940; together with Nicholas Courtman, a young Briton and PhD candidate in German Studies at Cambridge who had himself filed an application for naturalization that was turned down by the Federal Office of Administration in line with previous practice, they are looking for support from members of the German Bundestag and clerks in the German Ministries. The topic was eventually picked up by the German and international press (see the powerful article of 18 November 2019 on https://www.bbc.com/news/stories-50398227 ); in the end, the pressure was so strong that the interior ministry had to respond. Extremely belatedly, federal interior minister Seehofer now spoke of a „historical responsibility“ which Germany must shoulder towards the descendants of German Nazi persecution victims. Still, better late than never! The two decrees are designed to provide a quick, immediately enforceable rule in order to be able to restore German citizenship.
Specifically, the decree opens up a pathway to naturalization for those who were born prior to 1 April 1953 out of wedlock to denaturalized German mothers and foreign fathers. It should also benefit the mirroring group of applicants who were born prior to 1 July 1953 out of wedlock to denaturalized German fathers and foreign mothers if paternity was acknowledged or determined before the applicant’s 23rd birthday. Likewise, children whose parents acquired the citizenship of a foreign country in the course of being exposed to Nazi persecution measures and thus forfeited German citizenship, and their descendants, now also come within the purview of Article 116 (2) of the Basic Law. What’s also important is that dual or multiple citizenship including non-EU countries (i.e., a post-Brexit UK) will be tolerated.
The two decrees ought to help a number of applicants in the future to attain German citizenship. However, one group will not profit from the decrees: naturalization is not being made easier for the foreign descendants of victims of Nazi persecution who live within Germany. They, too, urgently require an intervention by the lawmaker. The language of Article 116 (2) of the German Basic Law itself makes it clear that there is no justification to discriminate against them. One will have to wait and see whether the time taken by the Federal Office of Administration for processing Art. 116 (2) applications will come down. Right now, officials need at least two years (and often three to five years) between submission and decision. This is absolutely unacceptable, given the redemptive character and moral dimension of this form of naturalization, the fact that applicants are often of advanced age, but also the imminence of Brexit.