FAQ: Restoration of Citizenship According to Article 116 par. 2 of the Basic Law

During the Nazi era, there were two main laws enacted that resulted in loss of German citizenship. The first was a 1933 law, under which specific individuals’ names were listed and published in the Reichsgetzblatt (the Reich Law Gazette). The 1933 law led to “forced expatriations” of those specifically named individuals.

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 post-war Germany, the government enacted legislation to rectify the loss of citizenship under the Nazi regime. Article 116 II GG provides for the restoration of German citizenship to former German citizens who were deprived of their German citizenship due to “political, racial, or religious grounds” during the period from January 30, 1933, to May 8, 1945. This law also applies to the descendants of such victims.

Any lineal descendant might have a claim for German citizenship if that person has an ancestor who was deprived of his or her German citizenship. This includes all first-generation descendants, as well as further descendants of such beneficiaries. If eligible, each descendant has an individual claim. Moreover, a grandchild can apply even if a parent (or grandparent) decides not to apply. Accordingly, second, third, fourth, and even fifth generations of descendants are eligible to obtain German citizenship pursuant to Art. 116 II GG.

The Federal Constitutional Court’s decision of 20 May 2020 (2BvR 2628/18) expanded the definition of ‘descendant’ and included:

• 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.

A Federal 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 GG. 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.

Prior to this decision, many people did not qualify for citizenship according to Art. 116 par. 2 GG, 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?

Although such persons could previously file a discretionary application for naturalization pursuant to Section 14 StAG (being the German Nationality Act), such process placed additional requirements such as language skills on the applicant, and therefore constitutes a higher burden. This Court’s ruling from 2020 opened the door to claims for German citizenship pursuant to Article 116 (2), rather than the more burdensome discretionary procedure according to § 14 StAG.

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 II GG. The ruling also could potentially allow previously rejected applicants to have their claims re-evaluated in light of this expanded definition. The ruling may also affect claimants who have pending applications according to § 14 StAG in process.

In recent years, there have been a lot of changes in German citizenship laws in the context of National Socialist persecution. Starting in 2016, due to political developments such as BREXIT in the UK and heated politics in many other countries, the number of inquiries from people seeking German citizenship increased significantly. Consequently, the German Federal Ministry of the Interior issued new rules in 2019, which clarified and expanded eligibility for German citizenship. More particularly the 2019 rules included descendants of individuals who lost their citizenship due to National Socialist persecution. The 2019 rules led, among other things, to the implementation of the fourth Amendment to the German Nationality Act (“StAG”) in 2021. That amendment introduced a new § 15 StAG. Section 15 StAG expanded the path for German citizenship even further to victims (and their descendants) who had no claim according to Art. 116 II GG. Moreover, a 2020 decision by the Constitutional Court broadened the definition of “descendant” in connection with Art. 116 II GG. All these changes widened the path for German citizenship for many people.

First and foremost, to atone for National Socialist persecution, the Federal Government of Germany recognizes its historical responsibility and has created a legal entitlement regarding the restitution of German citizenship.

Due to the increase in German citizenship applications since 2016, some unfair results became apparent. So, restitution for descendant of victims of National Socialist persecution was the main reason for these rules and decrees. Many Applicants who could not qualify for citizenship prior to these changes are now eligible to apply for German citizenship, particularly through the maternal lineage or if they were born out of wedlock.

The Fourth Act Amending the Nationality Act of August 20th, 2021 has created a new legal entitlement to acquire German citizenship for individuals who do not have a claim according to Art. 116 II GG. If Art. 116 II GG does not apply to you, you might want to check Section 15 StAG.