Administrative Court of Saarlouis (Verwaltungsgericht Saarlouis), 23 June 2017, case 2 K 1999/15
A foreign citizen who seeks naturalisation in Germany must meet a number of requirements. This is stipulated in the German Nationality Act (Staatsangehörigkeitsgesetz – StAG) and the German Residence Act (Aufenthaltsgesetz – AufenthG). Moreover, there must be no express grounds that would rule out naturalisation. According to section 11 sentence 1 no. 1 of the German Nationality Act (StAG), for example, anti-constitutional aspirations are a reason to exclude the applicant from naturalisation. No evidence need be provided of anti-constitutional leanings. Concrete grounds to assume an anti-constitutional attitude are sufficient. And it is not always clear how this assumption can be verified. It is not stipulated in detail whether the applicant must have pursued long-term anti-constitutional activities or only once have consumed anti-constitutional contents.
In the judgement below, the Administrative Court of Saarlouis established that posting an image of oneself with a Salafist preacher to Facebook and additionally using the Tawhid finger gesture do not suffice to assume that the applicant has anti-constitutional aspirations.
Facts of the court case:
Naturalisation of a Kosovan applicant rejected due to terrorist aspirations
This case was about the existence of grounds to exclude the applicant from naturalisation. The plaintiff had applied for naturalisation.
Originally from Kosovo, the applicant had been living in Germany since 1991 and had a permanent residence permit.
In 2013 he had applied for naturalisation, submitting, among other things, a certificate confirming his release from Kosovan citizenship.
However, in November 2015, the defendant was notified by the Federal State Intelligence Service that the applicant pursued Salafist aspirations. This was the result of a screening of his Facebook profile. In 2013, he had posted a picture showing both him with a Salafist preacher and the raised Tawhid finger gesture, which is also used by Salafists. This had led to the conclusion that the applicant was involved in Salafist structures. Before the authority had had a chance to notify the applicant of these findings, he had already filed an action against the defendant for failure to act in the naturalisation case.
After being notified of the Salafism charges, the applicant declared that he had not engaged in any behaviour endangering his naturalisation. He explained that the photo had been made when he had wanted to find out more about Islam and to see a preacher live. The photo itself was of no great importance to him and he was unaware that the raised (Tawhid) finger gesture could be interpreted as anti-constitutional. Rather, the gesture was common in Islam, similar to Christians making the sign of the cross. Neither had it been controversial in 2013, as IS had not existed at that time. In any case, the plaintiff himself had never had any anti-constitutional aspirations and such aspirations could not be deduced from a picture. The Federal State Intelligence Service confirmed that it had no further findings, but that the preacher himself was part of a Salafist network.
The authority argued that the plaintiff had not distanced himself
Consequently, his application for naturalisation was turned down in July 2016. The reason given was that naturalisation was automatically ruled out under section 11 sentence 1 no. 1 of the German Nationality Act (StAG) due to anti-constitutional aspirations. The authority did not believe that the applicant was unaware of the preacher’s anti-constitutional leanings. By posting an image of himself with the preacher to Facebook, he had publicly and effectively presented himself as a follower and supporter. Neither could use of the Tawhid finger gesture be understood as an act of religious freedom. IS had already been well-known in 2013 and using the gesture should therefore be seen as a sign of support.
The applicant had not distanced himself from this and a mere passage of time of only three years was not sufficient to this end.
Plaintiff brought action for naturalisation
The plaintiff’s action sought to oblige the defendant to naturalise him. Addressing the charge concerning the raised finger, he added that another image, taken during a boxing gala, showed him with a clenched fist. Both photos had been taken during special events and should therefore not be treated differently.
The defendant sought dismissal of the action making reference to the grounds for the exclusion of naturalisation.
Judgement of the Administrative Court of Saarlouis (Verwaltungsgericht Saarlouis)
Administrative court ruled that naturalisation authority must naturalise applicant
The Administrative Court of Saarlouis ruled that the admissible action was well founded and that the defendant must naturalise the applicant. It held that the applicant was entitled to naturalisation under section 10 I of the German Nationality Act (StAG), as the grounds for exclusion under section 11 sentence 1 no. 1 of the German Nationality Act (StAG) did not apply.
First of all, the court established that the requirements for naturalisation had not been disputed but that only the existence of grounds for exclusion had been at issue. According to section 11 sentence 1 no. 1 of the German Nationality Act (StAG) naturalisation was not permitted if there were concrete grounds to assume that the foreigner is pursuing or supporting or has pursued or supported activities aimed at subverting the free democratic constitutional system […] unless he credibly asserts that he has distanced himself from the former pursuit or support of such activities. The court then defined “pursuing” as personally taking action to support the aims of the activities. It also defined “supporting” as contributing to actions of another to achieve these aims. As examples, it cited providing financial support or participating in anti-constitutional activities. It also held that the preacher pursued anti-constitutional aspirations.
Court could not recognise terrorist aspirations of the plaintiff
However, the court did not recognise that the applicant had personally pursued such aspirations. It was not convinced that he had been aware of the preacher’s Salafist orientation and therefore did not attribute the preacher’s behaviour to him. It rather believed the plaintiff’s statement that he had simply wanted to find out more about Islam on the Internet and had come across the preacher. The court attributed his allowing himself to be photographed with the preacher and using the Tawhid finger gesture to his naivety. It held that the plaintiff had been unaware of any further significance and interpretations to that effect.
Furthermore, the court ruled that the plaintiff had now obviously distanced himself from any assumed Salafist aspirations. In this regard, the court clarified that the requirements for proof of his distancing must not be stricter than those for the grounds for exclusion. The court held that the stronger his anti-constitutional behaviour was, the stronger the evidence should be to make his distancing credible. It ruled that it had to be externally recognisable that his personal attitude had really changed for the better and that he was not merely faking such a change for the naturalisation procedure.
Plaintiff had changed personally and made his change credible
In the plaintiff’s case the court first established that he had filed the application for naturalisation before being notified that he was known to the Intelligence Service. He had therefore been unaware of his observation when bringing the action and had therefore not been influenced by it and refrained from any anti-constitutional activities for this reason alone. Furthermore, the plaintiff had distanced himself from the preacher and assured that he would no longer attend any of his events with his current knowledge. The court also accepted this due to the fact that the applicant was married to a German, had three children and a normal job. In the court’s opinion such a distancing was sufficient to rule out any suspicion of anti-constitutional leanings due to a photograph for the future.
The court hence rejected the existence of grounds for excluding the applicant from naturalisation and ruled that the defendant must naturalise the applicant.
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