Federal Administrative Court, 25.10.2017, Case No.: BVerwG 1 C 30.16
According to § 6 Sentence 1 of the German Nationality Act (StAG), a child who has not yet reached the age of eighteen at the time of the adoption application acquires German nationality if they are validly adopted as a child by a German citizen under German law.
The regulations concerning adoption as a child are found in Article 22 of the Introductory Act to the Civil Code (EGBGB) in conjunction with §§ 1741 ff. of the Civil Code (BGB). There are different types of adoption, including open, semi-open, and anonymous adoptions, as well as international or foreign adoptions. International adoption involves a change of residence from one country (the home country) to another (the host country). Regulations for international adoption are found in the Adoption Placement Act (AdVermiG), the Adoption Convention Implementation Act (AdÜbAG), and the Adoption Effects Act (AdWirkG).
Facts of the Case:
After Adoption, Plaintiff Traveled to Germany with a Visa
The parties disputed whether the plaintiff acquired German nationality through adoption under § 6 Sentence 1 StAG. The plaintiff, born in 1993 in Kinshasa, Democratic Republic of Congo (formerly Zaire), is a Congolese national. After the death of her biological parents, she was adopted by her uncle in 2006 before reaching the age of 18. The uncle had already been granted guardianship in May 2004, before the death of the plaintiff’s mother in November 2004. After the adoption, the plaintiff entered Germany with a visa and has lived there since. The uncle, who also hails from the Democratic Republic of Congo, had already acquired German nationality before the adoption. The Peace Court in Kinshasa approved the adoption on May 4, 2006, „with the possibility of traveling abroad.“
Rejection of the Certificate of Nationality by the Federal Office of Administration Due to „Weak Adoption“
Since the Democratic Republic of Congo only recognizes „weak adoption,“ in which the parent-child relationship with the biological parents does not dissolve and the kinship relationship with the previous family persists, the Federal Office of Administration (BVA) rejected the uncle’s application for a certificate of nationality for the plaintiff, as well as the objection. The Administrative Court of Cologne (Case No. 10 K 3084/13) affirmed the acquisition of nationality, while the Higher Administrative Court of Münster (Case No. 19 A 1132/14) denied it. The revision procedure primarily focused on the legal effects of international adoption in Germany (specifically relative adoption) and whether „weak adoption“ leads to the acquisition of German nationality.
Decision of the Federal Administrative Court
German Citizenship Only if the Previous Parent-Child Relationship is Extinguished by Adoption
The Federal Administrative Court rejected the plaintiff’s appeal against the Higher Administrative Court’s ruling of July 26, 2016 (Case No. 19 A 1132/14). The revision court held that the adoption of a minor child abroad by a German citizen typically only leads to the acquisition of German nationality if the international adoption also extinguishes the parent-child relationship with the biological parents.
Under § 6 Sentence 1 StAG, a child acquires nationality through a valid adoption as a child by a German citizen under German law, provided the child has not yet reached the age of 18 at the time of the adoption application.
According to the Federal Administrative Court, § 6 StAG requires that the acquisition of nationality through an international adoption must also be valid in Germany and be essentially equivalent to an adoption under German law, as defined by §§ 1741 to 1766 BGB (equivalence). For equivalence, the adopted child must be legally equated with a biological child of the adoptive parent. Furthermore, the dissolution of the adoption relationship must be subject to similar restrictive conditions as those stipulated by German law in §§ 1759, 1761, and 1763 BGB.
International Adoption Not Equivalent to Full Adoption under German Law
The legal validity of the international adoption in family law was not disputed in this case. However, the family court decision of the District Court T. on October 31, 2008, indicated that the parent-child relationship between the plaintiff and her biological parents was not extinguished. This is a critical element under German law, where the legal equating of the adopted child with a biological child of the adoptive parent and the complete legal integration into the new family are of central importance. Therefore, a key requirement for equivalence with a full adoption under German law is missing. The severance of ties with the biological parents is crucial for the child’s integration, regardless of whether both biological parents are deceased. When assessing the equivalence of an international adoption, an abstract view must be taken, not distinguishing between cases where one or both biological parents are deceased or missing. In nationality law, the principle of legal certainty is so significant that clear abstract criteria for the legal equivalence of adoption effects and, thus, the acquisition of nationality are required. The plaintiff’s adoption was only a weak adoption, which does not meet the requirements of § 6 Sentence 1 StAG. Therefore, the appeal was dismissed.
Source: Federal Administrative Court
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