NATURALISATION: ACQUISITION OF GERMAN NATIONALITY WITH RETENTION OF PREVIOUS CITIZENSHIP - MTH Rechtsanwälte Köln
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Rechtsanwalt Helmer Tieben
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von: Helmer Tieben

Nationality is the allegiance of an individual citizen to a particular state with all the associated rights and obligations. Each country determines who its nationals are, and whether and under what conditions this nationality can be lost or acquired in accordance with the general principles of international law and within its limits. In Germany, nationality is governed by the German Nationality Act (Staatsangehörigkeitsgesetz – StAG).

If a foreign national seeks to acquire German citizenship, he or she must submit an application for naturalisation. The legal basis both for the acquisition and loss of German nationality can be found in the German Nationality Act (Staatsangehörigkeitsgesetz – StAG). Due to the lack of uniform regulations between the individual countries, you can have one, two or multiple nationalities or even no nationality at all.

To be naturalised in Germany, you will normally need to give up your old citizenship

In Germany, on the other hand, it is important to know that you will normally lose your former nationality with naturalisation or must renounce it, because Germany wants to avoid creating multiple nationalities through naturalisation (section 10 para. (1) no. 4 of the German Nationality Act), since the aim of naturalisation should be for the applicant to pledge allegiance to Germany alone. Moreover, there is no general entitlement to dual nationality (aka multiple nationality)

Dual nationality as an exception

That said, there are exceptional cases where Germany will allow dual citizenship. In these exceptional cases, the foreign national can apply for naturalisation with dual nationality in Germany despite certain exceptional circumstances on the part of his or her country of origin. These exceptions are governed by section 12 of the German Nationality Act:

THE FOREIGN STATE REFUSES TO RELEASE OR MAKES NO PROVISION FOR RELEASING ITS NATIONALS FROM CITIZENSHIP

According to section 12 para. (1) sentence 2 nos. 1 and 2 of the German Nationality Act, a multiple nationality of the applicant is allowed, for example, if the law of the foreign state makes no provision for renouncing its citizenship or if the foreign state regularly refuses to release its nationals from citizenship. This is the case for certain Asian or African countries (such as Afghanistan, Syria, Morocco, Algeria, Angola, Lebanon, Iran,  …). There, the state makes no provision for renouncing its citizenship. There are many reasons why giving up one’s citizenship is not possible Some countries make no statutory provisions for renouncing their citizenship and hence regularly refuse a denaturalisation. Furthermore, it may be de facto impossible. This is the case if the foreign state has never or almost never allowed its nationals to give up its citizenship. This also applies when the law of the foreign state makes renunciation of its citizenship dependent on a certain age limit, but in addition, it must be de facto impossible to renounce the foreign citizenship after reaching this required age limit. 

REFUSAL TO ACCEPT APPLICATION FOR DENATURALISATION

In accordance with section 12 para. (1) sentence 2 no. 3 of the German Nationality Act, a failure of the foreign state to accept the application may also constitute grounds for permitting multiple nationality. Moreover, a refusal of the foreign state to provide the required application forms despite repeated serious and sustained efforts on the part of the applicant may result in the applicant being allowed to become a German national through naturalisation while retaining his or her previous citizenship.

FAILURE TO DECIDE WITHIN REASONABLE TIME ON APPLICATION FOR DENATURALISATION

In some cases, a foreign state can even take more than two years to decide on the foreign national’s application for release from citizenship. This is an unreasonable length of time and can hence be a reason to permit dual nationality in individual cases. An unreasonable condition for renunciation of a previous citizenship also exists if it would lead to substantial disadvantages for the applicant (for example, dangers to the applicant or his or her family members). If a release from citizenship is refused for reasons beyond the foreign national’s control, this can also help with the acceptance of dual nationality. Exceptions are made equally often in the case of unreasonable conditions demanded by the foreign state for a denaturalisation. If the release from foreign citizenship is made dependent on the performance of military service, this is an unreasonable condition, for example, if the applicant is over 40 years of age and has not habitually resided in this foreign state for more than 15 years or was born or raised in Germany, was educated mostly at German schools, and has reached the age for military service in the territory of the Federal Republic of Germany.

RELEASE FROM CITIZENSHIP ENTAILS UNREASONABLE DIFFICULTIES OR CONSTITUTES SPECIAL HARDSHIP

If “the process for release from citizenship entails unreasonable difficulties, and failure to grant naturalisation would constitute a special hardship” multiple nationality must often be allowed for elderly persons who have reached the age of 60. The decisive factor is what efforts would be reasonable for an elderly person. For example, entering the country, which is required by the foreign state for denaturalisation, cannot be demanded if it would be impossible for an elderly person due to poor health. By and large, failure to grant naturalisation to the elderly person must constitute a special hardship. This would be the case, for example, if family members living in Germany are already German citizens (section 12 para. (1) sentence 2 no. 4 of the German Nationality Act).

SUBSTANTIAL DISADVANTAGES IN THE EVENT OF RELEASE FROM CITIZENSHIP

Germany must also make exceptions if the foreign national would suffer substantial disadvantages beyond the loss of his or her civic rights, in particular disadvantages of a financial or property-related nature, by giving up his or her foreign citizenship. For example, if denaturalisation would lead to inheritance rights restrictions in the country of origin or a loss of pension entitlements. However, these disadvantages must be related in time and substance to the renunciation of the previous nationality and must be verifiable (cf. decision of the Cologne Administrative Court (Verwaltungsgericht Köln) of 7 December 2005, 190 K 356/05). On the other hand, a possible impairment of future income-generating opportunities will not be sufficient reason on its own. Even economic disadvantages worth less than EUR10,000 would generally be considered immaterial
(section 12 para. (1) sentence 2 no. 5 of the German Nationality Act).

If the foreign national holds a travel document in accordance with Article 28 of the Convention relating to the Status of Refugees of 28 July 1951, dual nationality will also be permitted by Germany (section 12 para. (1) sentence 2 no. 6 of the German Nationality Act).

The City of Cologne wishes to point out that dual nationality can be allowed if the previous citizenship cannot be renounced or can only be renounced under particularly difficult conditions (see above). Another reason stated by the City of Cologne would be the if the foreign national holds the citizenship of another member state of the European Union or Switzerland. Exceptions are also to be made for persons who are recognised as foreign refugees or have been granted asylum. All exceptions are based on individual decisions and may differ slightly, so that an examination of the individual options of the respective applicant is recommended.

Important note: The contents of this article have been created to the best of our knowledge and belief. However, due to the complexity and volatility of the subject we are unable to accept any liability or guarantee.

If you need legal advice, please call us without obligation on 0221 – 80187670 or send us an e-mail to info@mth-partner.de

 

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