Administrative Court of Munich, 21 August 2019, Ref. 5 ZB 18.1226
Note: Due to the amendments to the Citizenship Act in 2024, dual citizenship is now possible.
People who have grown up in two cultures are often faced with the question of which nationality they want to adopt. In Germany, this is particularly true for people born in Turkey who have emigrated to Germany. If they decide to naturalise, they must renounce their Turkish citizenship under German law. This is regulated in the Citizenship Act (StAG). Further regulations can be found in the Residence Act (AufenthG). According to § 25 StAG, a German can lose their German citizenship if they apply for and acquire a (non-EU) foreign citizenship. Whether such an application and acquisition have taken place is often not recognisable to the German authorities. These processes take place solely between the person and the other state. There is generally no obligation to provide information under international law. The German authorities are therefore dependent on the co-operation of the individual to clarify the facts of the case (see Section 82 Residence Act for the clarification of facts under residence law). This is therefore atypical, as the authorities normally have to prove all relevant facts. It was therefore not clear whether the person concerned must also cooperate in proving that they have acquired a foreign nationality.
In the following judgement, the Administrative Court of Munich (VGH Munich) clarifies that a duty to cooperate can also arise in proceedings under nationality law.
Facts of the Case:
Turkish plaintiff filed suit against the determination of loss of German citizenship
In this case, the parties are disputing the admissibility of an appeal against a judgement by an administrative court. The previous legal dispute before the Administrative Court concerned the legality of the determination of the loss of German citizenship. The plaintiff is a man affected by the determination, the defendant is a foreigners authority.
The man, born in Turkey in 1954, acquires German citizenship in December 2000 with a naturalisation certificate from the defendant immigration authority and submits a certificate of release from Turkish citizenship.
The authorities had established that the plaintiff had regained Turkish citizenship
In September 2013, the plaintiff's son sends a copy of extracts from the Turkish civil status register from 2012, which show that the plaintiff has regained Turkish citizenship. The foreigners authority and the German embassy in Ankara consider the copies to be authentic. The foreigners authority then repeatedly requests the applicant to submit a current register information issued by the Turkish Consulate General. The applicant does not comply. He merely declares that he has not applied for re-naturalisation. Instead, he assumes that he may have been naturalised again against his will, as has already happened with men liable for military service, for example.
The foreigners authority nevertheless declares that the plaintiff has lost his German citizenship, as it considers Section 25 StAG to be fulfilled. The man appeals against this decision to the administrative court. In his argumentation, the plaintiff invokes the burden of proof of the authorities regarding the re-acquisition of Turkish citizenship. He does not consider the copy to be sufficient, also because the date of birth of his son shown on it is incorrect. He also claims to be in possession of a PEMBE card, which is only issued to former Turkish citizens. Finally, he submits two Turkish civil status register extracts from two municipalities from 2017, which do not show that he has regained Turkish citizenship.
The defendant considers these extracts to be insufficient and also doubts their authenticity. Furthermore, she refers to the indication "SAG" on the extract, which is only used for active registers, as confirmed by the German Embassy and the Turkish Consulate General. In the opinion of the foreigners authority, the note "KAPALI" is required for a closed register indicating naturalisation.
The administrative court initially appealed to rejects the claim
The Administrative Court dismisses the claim on the grounds that, in the court's opinion, the claimant had regained Turkish citizenship. It also relieves the authorities of the full burden of proof that this is not the case. For example, the Turkish authorities do not issue extracts from the civil status register to German authorities and courts. Since these facts lie far within the sphere of the plaintiff, the man's co-operation within the meaning of § 82 I 1 AufenthG is required to clarify them. § 82 I 1 AufenthG is required. The plaintiff did not fulfil this obligation to cooperate. In particular, the excerpts from the register submitted by the plaintiff are not sufficient, while the required register information issued by the Turkish Consulate General is missing. The authorities were also unable to obtain this themselves. It is also up to the plaintiff to prove that he did not voluntarily apply for re-naturalisation, as such an internal fact is practically impossible for the authorities to prove and re-naturalisation of the plaintiff against his will would be an absolute exception. Turkish law only provides for naturalisation upon application. The court does not accept the plaintiff's argument that he applied for naturalisation by mistake. It assumes a fundamental duty of care with regard to checking the contents when signing official forms. As a result, it finds in favour of the authorities and dismisses the man's claim.
The plaintiff therefore requests that the appeal be allowed
He wants to defend himself against this and therefore applies for the appeal to be allowed. The immigration authorities apply for the appeal not to be allowed.
Judgement of the Administrative Court of Munich
Administrative Court did not see any grounds for authorisation for the appeal
The Administrative Court of Munich rejects the application for permission to appeal as no grounds for authorisation within the meaning of Section 124a IV 4 VwGO have been sufficiently presented. § 124a IV 4 VwGO has been sufficiently demonstrated.
To this end, it first examines whether the common ground for admissibility of serious doubt as to the correctness of the judgement within the meaning of Section 124 II no. 1 VwGO exists. § Section 124 II No. 1 VwGO exists. Such doubts would only exist if fundamental legal principles or significant factual findings of the administrative court are called into question by conclusive counter-arguments. A conclusive counter-argument is given if the applicant demonstrates circumstances that are very likely to render the judgement of the court of first instance incorrect.
The Court of Appeal also placed the burden of proof on the Turkish plaintiff
The plaintiff continues to argue that the requirements of Section 25 StAG are not met, as he has not acquired Turkish citizenship and the authorities would have to prove otherwise. Otherwise, he largely repeats his arguments from the proceedings before the Administrative Court, which the Administrative Court in turn refutes with arguments similar to those of the Administrative Court. However, it goes into more detail on the burden of proof of the authority or the administrative court. It found that the plaintiff had a duty to co-operate, as there were considerable indications that he had reacquired Turkish citizenship. Furthermore, it is only possible for the plaintiff, but not the authority or the administrative court, to obtain information from the Turkish authorities in this regard. The VGH expressly refers once again to a failed request for legal assistance from the foreigners authority at the Turkish Consulate General. Thus, the plaintiff's reference that the authority should have requested the desired information from the Turkish Consulate General does not constitute a demonstration of serious doubts as to the correctness of the judgement. Furthermore, the judges questioned why the plaintiff went to the trouble of obtaining register extracts from Turkey, but did not obtain up-to-date register extracts from the Turkish consulate in Germany. However, such a duty to co-operate is given under § 37 I 2 StAG in conjunction with § 82 I 1 AufenthG.
Thus, there were no serious doubts about the correctness of the judgement
As a result, the VGH Munich sees no serious doubts about the correctness of the judgement and also considers the other grounds for appeal under Section 124 II VwGO to be irrelevant. It therefore does not allow the appeal.
Source: VGH München
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