FAQ RESTORATION OF CITIZENSHIP (Article 116 par. 2 of the Basic Law)
FAQ: RESTORATION OF CITIZENSHIP ACCORDING TO Article 116 par. 2 of the Basic Law
Special rules apply to former German citizens, who were deprived of their German citizenship due to persecution on political, racial or religious grounds between January 30, 1933 and May 8, 1945. These rules also apply for descendants.
1. What is Article 116 par. 2 of the German Basic Law?
Essentially, Article 116 par. 2 of the German Basic Law (“Grundgesetz”) governs claims for citizenship for former German citizens who were deprived of their citizenship between January 30, 1933 and May 8, 1945 based on political, racial, or religious grounds. Accordingly, these former citizens, as well as their lineal descendants, shall have their citizenship restored upon application. Moreover, the law provides that they shall be deemed never to have been deprived of their citizenship, if they have established domicile in Germany after May 8, 1945 as long as they have not expressed any intention to the contrary. In summary, the law establishes a basis to claim German citizenship which was forcibly lost due to Nazi persecution.
2. I heard there are new rules as of August 30, 2019. What has changed?
Recent political developments over the past several years, including BREXIT in the UK and heated politics in many other countries, saw large increases in the number of inquiries from people seeking German citizenship. There were new rules issued by the German Federal Ministry of the Interior, which clarify and expand eligibility for German citizenship, particularly to include descendants of individuals who lost their citizenship due to National Socialist persecution. As a result, certain descendants are also now eligible to obtain or restore their German citizenship.
3. Who benefits from the new rules, dated August 30, 2019?
The changes mostly apply to certain categories of children, who previously were not eligible, which then rendered their children, and further descendants also ineligible. Under the new rules, the following groups of persons are now eligible:
- Children who were born prior to April 1, 1953 (in wedlock) whose mother was German, but whose citizenship had been revoked and a foreign father (i.e. non-German father);
- Children who were born prior to July 1, 1993 (out of wedlock) whose mother was a foreigner (i.e. non-German mother) and a German father whose citizenship had been revoked, as long as paternity was recognized and established pursuant to German law prior to the child reaching age 23, and;
- Children born to a German parent who had acquired foreign citizenship and lost German citizenship as a result of persecution under National Socialism. This includes children whose mothers emigrated due to such persecution and citizenship was lost by marriage to a foreign husband prior to April 1, 1953.
4. Are “descendants of descendants” also included?
Yes. These new rules include all first-generation descendants, as well as further descendants of the above beneficiaries, but only up to a certain generational cut off point. For the cut off, we look to § 4 of the StAG (section 4 of German Citizenship Laws “Staatsangehörigkeitsgesetz) which basically states that one may not acquire German citizenship if the German parent was born abroad after December 31st, 1999 and ordinarily resides abroad. (Note: This would not apply if the application of the cut off would render the child stateless. However, such instances are rare.)
Accordingly, second, third, fourth, and even fifth generations of descendants are now eligible to obtain German citizenship pursuant to Article 116 (2).
5. What is the legal and historic background of Art. 116 par 2 German Basic Law?
There were two main laws enacted during the Nazi era resulting in loss of German citizenship. The first one was based on a 1933 law, whereby specific individuals, had their names listed and published in the Reichsgetzesblatt (The Reich Law Gazette). The second, enacted on November 25, 1941, was the enactment of the “Eleventh Decree to the Law on the Citizenship of the Reich”. This law affected many more people than the individual “forced expatriations” in the published Gazettes. According to this law, any Jewish German living outside of Germany on the effective date of the law, was automatically stripped of German citizenship. Thus, for those Jews who had left Germany prior to the War (or shortly after it began), German citizenship was automatically and instantaneously lost as of the effective date of the law.
In the wake of post war Germany, the government enacted legislation aimed at rectifying the loss of citizenship under the Nazi regime. Article 116, paragraph 2 of the Basic Law provides for the restoration of German citizenship to former German citizens deprived of their German citizenship due to “political, racial, or religious grounds” in the time period from January 30, 1933 to May 8, 1945. The law also applies to their descendants.
6. What was the purpose of the new regulations in 2019?
Due to the increase in German citizenship applications since 2016, some unfair results became apparent. The main reason for the August 30, 2019 rules, was to alleviate those inherent inequities in the law for people who otherwise could not qualify for citizenship because they were unable to answer the following question affirmatively:
Q: Had the primary claimant of a claim to naturalization not been deprived of their German citizenship, would his or her descendants have acquired German citizenship by birth according to the (at that point in time) applicable German law of citizenship?
Often, this question had to be answered “no” because of the citizenship laws which were in effect before the rules were promulgated. The new rules establish categories of eligible descendants, provided certain criteria are met, who previously could not answer this question in the affirmative because they were unable to acquire German citizenship by birth, particularly through the maternal lineage or if they were born out of wedlock. These new rules alleviate these inequitable results and will allow many claims for citizenship to proceed, provided certain criteria are met.
7. Do the new rules also cover children of German citizens, who were not affected by the Nazi era?
Yes. The new rules apply to descendants of German citizens, even if they were not affected by the Nazi government, but who were otherwise excluded from obtaining German citizenship by virtue of earlier regulations on descent, which are now unconstitutional. This is opening up the path to German citizenship for many people.
8. I read about a recent “Constitutional Court” case that discussed citizenship under Article 116 which reversed a denial of citizenship by lower agencies/courts.
A recent Constitutional Court case (Case Number 2BvR 2628/18, decided May 20, 2020) applied a broad definition to the term “descendant” within the meaning of Article 116, par. 2. The Court determined that descendants include:
- children born in wedlock prior to April 1, 1953 to mothers who were forcibly deprived of their German nationality and foreign fathers;
- AND children born out of wedlock prior to July 1, 1993 to fathers who were forcibly deprived of their German nationality and foreign mothers.
Although such persons could previously file a discretionary application for naturalization pursuant to Section 14 StAG (a process which places additional requirements such as language skills on the applicant, and therefore constitutes a higher burden), this Court ruling opens the door to claims for German citizenship pursuant to Article 116 (2), rather than the more burdensome discretionary procedure according to § 14 StAG (German Nationality Act).
The German Constitutional Court is the highest Court, which means this expansive definition is now enshrined in German law. Thus, it is now possible for more people to claim citizenship under Article 116 (2) of the German Basic Law moving forward, and potentially allows previously rejected applicants, as well as claimants who have pending applications according to § 14 StAG in process, to have their claims re-evaluated in light of this expanded definition.
These FAQs reflect questions that have frequently arisen in our practice. Each case is different, and the FAQs do not replace legal advice.