With its judgment of May 20, 2020, the Federal Constitutional Court gave the Federal Office of Administration, but also the German administrative courts, a resounding slap in the face: their practice contradicts the constitutional prohibition of unequal treatment of men and women and of the discrimination of children born outside of marriage. The consequences are far-reaching. The legislator must take up this judgment. The BVA has assured to follow this judgement in new cases, but as well to decide again on the basis of an application in old and legally closed cases.
Last year, the Federal Ministry of the Interior, Building and Community, had tried to regulate the practice of naturalization according to Article 116 (2) of the Basic Law in two decrees (please, see our previous article). These decrees concern the right to naturalize for emigrants who were deprived of their German citizenship on political, racial or religious grounds between 1933 and 1945. Their descendants, who are expressly named in Article 116 (2) of the Basic Law, are also entitled to do so. Applicants are usually children or grandchildren, because in the meantime almost no members of the so-called experience generation are alive any more. The practice of the Federal Office of Administration (BVA) and the administrative courts, right up to the Federal Administrative Court (BVerwG), has always been very restrictive towards all applicants.
In its landmark judgment of May 20, 2020 (ref. 2 BvR 2628/18), the Federal Constitutional Court ruled in favor of an American born in 1967 that, on the basis of negative decisions of the BVA about restoration of the citizenship and negative judgments of administrative courts, which these decisions confirmed, her fundamental rights under Article 3 (2) and Article 6 (5) of the Basic Law had been violated, ie that the prohibition of unequal treatment of men and women and the prohibition of discrimination of children born out of wedlock had been injured. The BVerfG has declared the decades of practice of BVA and administrative courts to be unconstitutional – an outrageous decision. This can have great consequences for thousands of ongoing proceedings and thousands of future proceedings – especially since Brexit when many descendants in the UK and applicants from the USA and other countries have filed applications under Article 116 (2) of the Basic Law. Those affected have organized themselves into groups, e.g. the „Article 116 exclusion group“ (website: https://www.article116exclusionsgroup.org/).
Specifically, the plaintiff’s father, a Jewish refugee who had emigrated to the USA, had been deprived of German citizenship in 1938 – his expatriation was even published in the „German Reich Gazette“ (not „German Legal Gazette“, as the BVerfG writes in its decision under point I.1). Although he recognized his daughter who was born outside of marriage as being his legitimate child, her application under Article 116 (2) of the Basic Law was nevertheless rejected: until July 1, 1993, children born outside of marriage did not acquire the citizenship of the father, but only that of the mother. The plaintiff has appealed against that before the German courts for five years unsuccessfully. This is because the Federal Office of Administration and the administrative courts, right up to the Federal Administrative Court, applied a hypothetical examination of applications: Would the plaintiff have acquired German citizenship in accordance with the law that applied at the time of his or her birth? This has been the practice of the German authorities since the 1950s, but only under Article 116 (2) of the Basic Law, not under Article 116 (1) of the Basic Law (which concerns expellees of German ethnic origin). As a result, all applications were rejected if a link in the chain did not allow for the acquisition of German citizenship at the time of the law applicable in Germany at his or her birth. For this reason, children from German expatriate fathers who were born out of wedlock until July 1, 1993 did not receive German passports. Cases of adopted children were also rejected. The BVerfG has now clarified that these unconstitutional rules, which violate Article 3 (2) of the Basic Law and Article 6 (5) of the Basic Law, may not still be applied by way of the hypothetical test. From now on, these case groups have to be decided differently. However, the cases of adoptions remain open, as do the cases of the expatriation and the naturalization in the exile countries, which resulted in a subsequent automatic loss of German citizenship pursuant to Section 25 of the Nationality Act of the German Reich (so-called RuStAG). The BVerfG has not decided on these cases yet.
After the judgment of the BVerfG, the Austrian, Sudetenland, Memel and Danzig cases also remain open: after the occupation of these territories in 1938/39, the ethnic Germans in Austria, the Sudetenland, Memel and Danzig had been naturalized en bloc, but with the exception of all Jews. The applications of these emigrants and their descendants pursuant to Article 116 (2) of the Basic Law have been rejected since the landmark judgment of the BVerwG in 2001 (ref. 1 C 18.99) on the grounds that their ancestors had never been German citizens. That is true, but for the same reason for which the emigrants were expatriated, these persons were not naturalized, namely because they were Jews. In the German Reich itself, a naturalization ban for Jews had been in force since 1933, but Jews were only very rarely naturalized even during the Weimar Republic.
Here, the legislator must take action – however, the Bundestag rejected a corresponding bill in the Bundestag on January 30, 2020 (incidentally the 87th anniversary of Hitler taking power in Germany) with the votes of the grand coalition. The BVA has announced, that it will change the practice according to this judgement. Further, it promised, that it will even – on the basis of an application – open cases, which are already closed, to decide them according to the principles, spelt out by the Constitutional court (see its announcement on this site – the English version is available here).
In September 2019, however, the legislators in Austria and the Czech Republic had already given their emigrants the right to regain citizenship. This will apply in Austria from September 2020, in the Czech Republic it applies already now. In this respect, an Austrian or Czech passport may be the alternative to a German passport in times of Brexit if nothing continues to happen in Germany for the Austria and Sudetenland cases. In most other cases, the practice or the law that Germany owes to these emigrants has to change.
Art. 116 Abs. 2 Grundgesetz der Bundesrepublik Deutschland (1949)
Urteil des Bundesverfassungsgerichts vom 20. Mai 2020 (AZ: 2 BvR 2628/18)