Liberalization of the German Citizenship Act comes into force

Better late than never. German citizenship as an act of reparation – broad liberalization of the German Citizenship Act comes into force.

A far-reaching liberalization of the German citizenship law has come into force on 20 August 2021, with little fanfare and on the sidelines of public discourse. With the new law, the federal law maker has finally fulfilled, after more than 70 years, the mandate given by Art. 116 (2) of the Grundgesetz (Germany’s Basic Law – hereinafter “GG”) (“C’est mieux tard que jamais”), and has finally incorporated the entitlement constitutionally guaranteed in Art. 116 (2) of the GG into the Citizenship Act. As a consequence, Jewish as well as political émigrés from the German Reich between 1933 and 1945, the path to a German passport has become easier (though still not exactly straightforward), and many whose ancestors weren’t German citizens now also benefit from the rules.

The Bundestag and the Bundesrat implemented the changes to the German Citizenship Act (“StAG”) in a very fast procedure on the last two days before the summer break (24 and 25 June 2021) as originally proposed (see our article: “New Opportunities for Jewish Emigrants from Germany and Austria as well as New Obstacles for Emigrants from Former Czechoslovakia,” Some last-minute restrictions were in fact added to the law, but these were directed less against Jewish émigrés and their descendants than against applicants with anti-Semitic and other anti-constitutional tendencies. Naturalization is excluded in the case of relevant convictions. It is questionable whether this makes sense, since anti-Semitism and racism have long been a problem among a solid if small minority of people who already hold German citizenship, and many racists and anti-Semites within Germany take offense with alien, asylum, and refugee laws rather than citizenship laws. Jewish émigrés and their descendants are generally not anti-Semites.

The amendments that have now come into force remain as drafted in the bill (an addition to Sec. 14 StAG is intended to facilitate applications for German citizenship by applicants from abroad; this was previously reserved for the wives of ambassadors, but was also made possible for applicants who had fallen through the strict grid of Art. 116 (2) of the GG): New naturalization options are available as a form of reparation in the amended Sec. 5 StAG – with a right of declaration until the year 2031 -, and in the new Sec. 15 StAG, through which new groups of applicants are entitled to German citizenship for an unlimited period of time (see our above-mentioned article for the details). At this point, one thing must be made clear: the term Jewish or racial, also in the questionnaires of the Federal Administrative Office (BVA) in Cologne, must be interpreted in the sense of the Nuremberg Laws of 1935, as follows from the logic of Art. 116 (2) GG. This means that even those émigrés who did not even consider themselves Jews after 1933, e.g. because of a Christian baptism long before 1933, but who were considered Jews by the Nazi authorities in their interpretation of the Nuremberg Laws, i.e. if they had at least three Jewish grandparents or if they were so-called “half-breeds” if other characteristics (e.g. synagogue attendance) were added, are entitled to the benefits offered by Article 116 (2) GG.

The qualitative change in the StAG beyond Art. 116 (2) of the GG lies in the fact that, from July 2021 onward, the group of eligible persons has been expanded to include such émigrés from Germany who themselves were never, and whose ancestors had never been, citizens of the Reich, i.e. citizens within the meaning of Art. 16 and Art. 116 (2) of the GG. The new extension is astonishing: with these changes, virtually all Jews and other racially discriminated persons (e.g. Roma and Sinti) and politically persecuted persons and their descendants are now eligible for German citizenship, even though they were never German citizens themselves. This applies in particular to Jews in the occupied territories whose neighbors were collectively naturalized as Germans, but who themselves were not naturalized as Germans for racial reasons – because they were of “racially impure blood” (e.g. in the so-called Sudetenland, i.e. the areas of Czechoslovakia that had been ceded to the German Reich in Munich at the end of September 1938, but also in the remaining areas of Czechoslovakia, particularly the Protectorate of Bohemia and Moravia). The same applies to all Jews in Austria, whether they were citizens of Austria or not: they were not naturalized as Germans after March 1938 but became stateless, or remained e.g. Polish, Romanian, Hungarian citizens, but were exposed to the same persecutions as their Jewish neighbors and therefore had to emigrate. The same now applies to Jews from Memel and Danzig (who did not qualify as German citizens in March or September 1939).

From now on, all Polish, Romanian (e.g. from Bukovina), Hungarian and other Jews and their descendants who lived in Germany after 1933 and who had to emigrate because of persecutions (this happened mostly until the end of August 1939) but who were never German citizens will also benefit from Sec. 5, 15 StAG. The number of Jews within the German Reich with Polish citizenship, for instance, is estimated to be up to 70000, about 20000 of whom lived in Berlin. Marcel Reich-Ranicki, who later attained great prominence in post-war Germany as a literary critic, was one of them: he was arrested at the end of October 1938 and deported to Poland in early November 1938. Theoretically, all foreign communists who had to flee the German Reich after January 30, 1933, as well as their descendants, may now apply for German citizenship. This can affect people from all over the world.

In addition, the StAG clarifies that this regulation applies without limit: Whereas in the case of German citizens, the two-fold generational cut in Sec. 4 (4) sentence 1 StAG applies, so that e.g. children of German citizens who were born abroad and whose parents were themselves born abroad after 1 January 2000 do not automatically become German citizens unless they notify the German authorities (e.g. the German embassy), of their birth within one year, this time limit does not apply to émigrés pursuant to Sec. 5, 15 StAG and Art. 116 (2) GG. In addition, the language test for applicants pursuant to Sec. 5,15 StAG has been abolished, whereas it used to be obligatory for applicants under the previous Sec. 14 StAG (though not under Art. 116 (2) GG). It is true, though, that the way in which German language skills were tested at embassies and consulates was generally rather perfunctory.

We may summarize as follows: as of today, an unknown number of persons worldwide are entitled to (re-)acquire German citizenship. An application according to Sec. 5, 15 StAG and Art. 116 (2) GG is “sufficient”, though proof of birth, marriage and descent practically back to the year 1900 or earlier will have to be submitted (birth, marriage, and residence certificates, old passports, and the like, will have to be hunted down and retrieved from attics and boxes kept by one’s forefathers; if necessary, these documents may have to be applied for again as duplicates, which is generally even easier). The descendants must then obtain all subsequent official documents issued to them (by the U.S., UK, Australia, Israel, South America etc.) with an apostille and have them translated into German, although English-language documents are now also accepted and documents from the EU can be issued in the format of EU Regulation 1191/2016 and then require neither an apostille nor a translation into German. In addition, current certificates of good conduct are required (if only because of anti-Semitic crimes – a rather absurd requirement for descendants of Jewish émigrés). Also, this condition of clean criminal record runs counter to the idea of restoration and reparation.

Another drawback is the long processing time at the Federal Administrative Office (BVA) in Cologne (up to three years – although this has improved in recent years), which in this respect has turned into a kind of historical seminar on the history of emigration from the German Reich after 1933. Applications are accommodated very quickly if they were submitted by a member of the so-called “Erlebnisgeneration” (i.e., the generation of living witnesses –persons born before 1945), to use the euphemistic term of the BVA; in such cases, the entire family will usually benefit from such a fast-track decision.

By international standards, the German rules of reparation through the granting of citizenship are unique and also among the most liberal: Austria has been very generous to Jewish émigrés since September 2020, Spain and Portugal grant their citizenship to the descendants of Jewish émigrés who had to leave both countries between 1492 (Edict of Alhambra) and 1580, mostly for the Ottoman Empire. Other countries are very bureaucratic (Poland, Hungary, Romania) and do not differentiate according to the reason for emigration, and others are completely hostile, e.g. the Czech Republic, which still thinks it is appropriate to make differences between Holocaust victims and their descendants in the 21st century according to whether they or their ancestors indicated in the 1930 or 1939 censuses that they spoke German as a mother tongue. In this sense, the Czech Republic now brings up the rear, instead of Germany, when it comes to displaying a baffling and blatant level of ignorance toward one’s own history (cf. the summary in the same article: “… new obstacles for emigrés from former Czechoslovakia”). This is ultimately unsustainable and intolerable for an EU member state, but the resistance in the Czech Republic is systemic and is fed by a deep historical inferiority complex and irrational fears toward German-speaking and Hungarian-speaking neighboring countries.

Art. 4 of the Fourth Amendment Act to the German Citizenship Act of August 2021 –BGBl. I, p. 3538
Citizenship claim for those persecuted by the national socialism and for their descendants has been enshrined in the law by Bundestag and Bundesrat – PRESSEMITTEILUNG 25.06.2021
Press release on behalf of the Article 116 Exclusions Group upon the vote in the Bundestag on 25 June 2021.

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