Federal Administrative Court, March 20, 2012, Case No.: 5 C 1.11
The acquisition of German citizenship is regulated by the Nationality Act (StAG).
According to Section 3 of the German Nationality Act, German citizenship can be acquired by birth (§ 4 StAG), by declaration under § 5 StAG, by adoption as a child (§ 6 StAG), by issuance of a certificate pursuant to § 15 Paragraph 1 or 2 of the Federal Expellees Act (§ 7), by transfer as a German without German citizenship within the meaning of Article 116 Paragraph 1 of the Basic Law (§ 40a), or for a foreigner by naturalization (§§ 8 to 16, 40b, and 40c).
Regarding the naturalization of a foreigner, a distinction is made between entitlement to naturalization and discretionary naturalization.
Entitlement to Naturalization
A foreigner is entitled to naturalization if they:
- Have legally resided in Germany for five years,
- acknowledges the liberal democratic order of the Basic Law for the Federal Republic of Germany,
- Possess a permanent right of residence or a residence permit at the time of naturalization,
- Can support themselves and their dependents without relying on benefits under SGB II or XII, or are not at fault for requiring such benefits,
- Have not been convicted of a criminal offense,
- Have sufficient German language skills, and
- Possess knowledge of the legal and social order and living conditions in Germany.
Discretionary Naturalization
Even if the above requirements are not fully met, authorities can grant discretionary naturalization if there is a public interest in the foreigner’s naturalization and certain minimum requirements are fulfilled:
- The foreigner or their legal guardian submits an application.
- The foreigner has legally resided in Germany.
- The foreigner has not been convicted of a criminal offense.
- The foreigner has a residence or other accommodation.
- The foreigner can generally support themselves and their dependents through their own employment or assets.
According to § 11 StAG, naturalization is excluded if there are actual indications that the foreigner is pursuing or has pursued activities that are against the free democratic basic order, the existence or security of the federal or a state government, or are aimed at unlawful interference with the functions of the constitutional organs of the federal or state governments, or which, by the use of violence or preparations for such, endanger the foreign interests of the Federal Republic of Germany, unless the foreigner credibly demonstrates that they have renounced the pursuit or support of such activities.
In the aforementioned ruling, the Federal Administrative Court had to decide whether, in the context of a naturalization process, the behavior of a foreigner that was the subject of a discontinued criminal investigation could be considered.
Facts of the Case:
Turkish plaintiff had lived in Germany for 20 years
The plaintiff was a Turkish citizen of Kurdish ethnicity who had lived in Germany for over twenty years.
In the spring of 1989, the Federal Prosecutor’s Office initiated an investigation against the plaintiff on suspicion of supporting a terrorist organization.
During this investigation, the plaintiff was accused of falsifying passports for the Kurdistan Workers‘ Party (PKK), which is classified as a terrorist organization, between 1988 and February 1994.
Prosecution Discontinues Case after Suspected Terrorist Activities
In August 1994, the Federal Prosecutor’s Office discontinued the case due to minor culpability.
Nevertheless, the City of Cologne rejected the plaintiff’s application for naturalization submitted in July 1997, arguing that the plaintiff was an active high-ranking member of the PKK.
The lawsuit and appeal against this decision by the City of Cologne were unsuccessful.
Administrative Court and Higher Administrative Court Dismiss Lawsuit Against the Rejection of Naturalization
The Higher Administrative Court ruled that naturalization was excluded by law (§ 11 Sentence 1 No. 1 Alt. 1 and 3 StAG) because the plaintiff had supported extremist activities through his actions.
Furthermore, he had not credibly demonstrated that he had renounced his previous support for the PKK.
The court also found that the prohibition on considering the case, as stated in the Federal Central Register Act (§ 51 Paragraph 1 BZRG), did not prevent the consideration of the earlier behavior in the naturalization process.
Federal Administrative Court’s Decision:
The Federal Administrative Court also agreed with the Higher Administrative Court’s view and dismissed the plaintiff’s appeal.
Although the broad prohibition on consideration under the Federal Central Register Act (§ 51 Paragraph 1 BZRG) generally applies when deciding on a naturalization application, an exception to this prohibition is only permitted in cases expressly regulated in the Federal Central Register Act (in particular § 52 Paragraph 1 No. 1 BZRG).
However, the prohibition on consideration applies only to offenses for which the foreigner has been criminally convicted, which was not the case here.
Thus, the discontinuation of the investigation does not prevent the underlying act from being considered in the naturalization process.
Source: Source: Federal Administrative CourtSource: Federal Administrative Court
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