Immigration Law: Naturalization can be denied in the case of a conviction for 120 daily fines due to aggravated assault.

Federal Administrative Court, March 20, 2012, Case No.: 5 C 5.11

The acquisition of German citizenship is regulated by the Nationality Act (StAG).

According to Section 3 of the Nationality Act, German citizenship is acquired:

• • • By birth pursuant to Section 4 of the Nationality Act,
    • By declaration pursuant to Section 5 of the Nationality Act,
    • By adoption as a child pursuant to Section 6 of the Nationality Act,
    • By the issuance of a certificate pursuant to Section 15(1) or (2) of the Federal Expellees Act (Section 7),
    • By continuation as a German without German citizenship within the meaning of Article 116(1) of the Basic Law (Section 40a),
    • Or for a foreigner by naturalization (Sections 8 to 16, 40b, and 40c).

The basic requirements for the naturalization of a foreigner are regulated in Sections 8 and 10 of the Nationality Act. The Nationality Act distinguishes between discretionary naturalization and entitlement to naturalization:

According to Section 10 of the Nationality Act, a foreigner is generally entitled to naturalization if he has been lawfully and habitually residing in Germany for eight years.

A residence is lawful under the Nationality Act if the foreigner is residing in Germany as an EU citizen entitled to freedom of movement or as another foreigner with the approval of the immigration authorities (e.g., with a residence permit or a settlement permit).

Further requirements for naturalization are that:

The foreigner declares his commitment to the free democratic basic order of the Basic Law for the Federal Republic of Germany.

The foreigner can provide for himself and his dependent family members without relying on benefits under the Second or Twelfth Book of the Social Code, or that any reliance on such benefits is not his fault.

The foreigner has not been convicted of an unlawful act, nor has any preventive detention order been issued against him due to his lack of criminal responsibility.

The foreigner has sufficient knowledge of the German language.

The foreigner has knowledge of the legal and social order and living conditions in Germany.

According to Section 12a of the Nationality Act, the following are not considered regarding the requirement of no convictions:

The imposition of educational or corrective measures under the Juvenile Court Act,
Convictions with a fine of up to 90 daily rates,
Convictions with a prison sentence of up to three months that has been suspended on probation and subsequently discharged after the probation period.

In the above-mentioned ruling, the Federal Administrative Court had to decide whether the city of Cologne had rightly denied naturalization to an applicant because the applicant had been convicted of dangerous bodily harm and sentenced to a fine of 120 daily rates.

Facts of the Court’s Ruling

The plaintiff was convicted of dangerous bodily harm.

The plaintiff, an Iraqi national, had been living in Germany since 2000. In 2004, he was convicted of dangerous bodily harm and sentenced to a fine of 120 daily rates.

Defendant Rejects Naturalization Due to the Conviction

Due to this conviction, the defendant, the city of Cologne, rejected the plaintiff’s application for naturalization.

The initial lawsuit filed with the Administrative Court was unsuccessful. The Higher Administrative Court, however, upheld the plaintiff’s appeal and ordered the defendant to reconsider the naturalization application, taking the court’s legal opinion into account.

Administrative Court Dismisses the Lawsuit, Higher Administrative Court Orders Reconsideration

The Higher Administrative Court justified its decision by stating that the statutory minor offense threshold of up to 90 daily rates had only been „slightly“ exceeded. Therefore, the defendant had to decide, at its discretion, whether to disregard the conviction.

Judgment of the Federal Administrative Court

The defendant, the city of Cologne, appealed the Higher Administrative Court’s decision to the Federal Administrative Court. The Federal Administrative Court agreed with the city of Cologne, overturned the Higher Administrative Court’s decision, and remanded the case for retrial and decision.

According to the Federal Administrative Court, there is generally no entitlement to naturalization if the foreigner has been convicted of an unlawful act (§ 10(1) sentence 1 no. 5 of the Nationality Act).

An exception is provided for convictions with a fine of up to 90 daily rates or three months imprisonment (§ 12a(1) sentence 1 nos. 2 and 3 StAG).

Federal Administrative Court Sees the Minor Offense Threshold as Not Slightly Exceeded

If the penalty exceeds these so-called minor offense thresholds, the naturalization authority may still disregard it as an exception at its discretion. However, this requires that the penalty only „slightly“ exceeds the prescribed limit (of 90 daily rates) (§ 12a(1) sentence 3 StAG). The Federal Administrative Court found that this was not the case with an excess of 30 daily rates, which is a third above the threshold.

However, the defendant may disregard the plaintiff’s lack of a clean record in the context of discretionary naturalization if his naturalization is in the public interest (§ 8(2) StAG). Since the Higher Administrative Court had not established any facts in this regard, the Federal Administrative Court referred the case back for further proceedings.

Source: Federal Administrative Court

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