Federal Administrative Court (Bundesverwaltungsgericht), 26 April 2016, case: BVerwG 1 C 9.15
German nationality law recognises both the principle of descent (ius sanguinis) and the principle of territoriality (ius soli).
|Principle of descent, section 4 para. (1) of the German Nationality Act (Staatsangehörigkeitsgesetz)||Principle of territoriality, section 4 para. (3) of the German Nationality Act (Staatsangehörigkeitsgesetz)|
|– Anyone born as a child of German parents automatically has German nationality|
– At least one parent has German nationality.
– If only the father has German nationality and is not married to the mother, a recognition or determination of paternity is necessary before the child reaches its 23rd year of age.
|– A child of foreign parents acquires German citizenship by birth in Germany, if one parent|
– has lawfully had his habitual residence in Germany for eight years and
– is an EU citizen enjoying freedom of movement or
– a national with equivalent status of an EEA country or
– has a temporary residence permit or
– permanent settlement permit
According to the principle of descent, a child acquires German citizenship by birth if the mother or father or both are German nationals.
However, since 01 January 2000, the principle of territoriality (ius soli) has applied in addition to the principle of descent under section 4 para. (3) of the German Nationality Act. According to this law, a child of two non-German parents automatically acquires German citizenship by birth in Germany under certain conditions if one parent has lawfully had his or her habitual residence in Germany for at least eight years. Section 4 paragraph (3) of the German Nationality Act reads as follows:
A child of foreign parents acquires German citizenship by birth in Germany if one parent
- has lawfully had his or her habitual residence in Germany for eight years and
- has a permanent right of residence or as a national of Switzerland or as a family member of a national of Switzerland has a residence permit on the basis of the Agreement of 21 June 1999 between the European Community and its Member States, for the one part, and the Swiss Confederation, for the other, on the free movement of persons (Federal Law Gazette 2001 II p. 810).
What purposes of residence are considered “lawful” according to section 4 para. (3) of the German Nationality Act has always been a controversial question. In the case discussed here, the Federal Administrative Court (Bundesverwaltungsgericht) had to decide on an appeal whether this also applied to stays for the purpose of studying.
The case of the Federal Administrative Court
The parents of the plaintiff, who was born in Germany in May 2013, were Israeli citizens. Her father had come to Germany to study in 1999.
After marrying a German, he had received a temporary residence permit for family reasons in 2004, a temporary residence permit for study purposes in 2006 after separating from his German wife, and a temporary residence permit for the purpose of employment in 2010 after successfully completing his medical studies.
He had held a permanent settlement permit since September 2011. The parents then wanted the defendant authority to establish German citizenship for the plaintiff’s daughter, whereupon the defendant stated in 2013 that the plaintiff had not acquired German citizenship by birth in Germany because her father had only had a temporary residence permit for study purposes and this was not sufficient under section 4 para. (3) of the German Nationality Act.
The plaintiff instituted proceedings against this and was successful in the lower instances before the Administrative Court of Ansbach (Verwaltungsgericht Ansbach) and the Higher Administrative Court of Bavaria (Bayerischer Verwaltungsgerichtshof). The plaintiff then lodged an appeal against the last ruling of the Higher Administrative Court of Bavaria with the Federal Administrative Court.
The decision of the Federal Administrative Court
The Federal Administrative Court shared the view of the previous instances and ruled that the plaintiff had acquired German citizenship according to the principle of territoriality enshrined in section 4 para. (3) sentence 1 of the German Nationality Act (StAG). According to the principle of territoriality (ius soli), a child of foreign parents acquires German citizenship by birth in Germany if one parent has an established residence here.
This established residence required, among other things, that the parent lawfully had his or her habitual residence in Germany for eight years. “Habitual residence” means that the foreign citizen resides in Germany not only temporarily, but for an indefinite period of time.
A temporary residence permit for training purposes would also make a habitual residence lawful. This would not be opposed by the fact that it is granted only for a specific, by its very nature, temporary purpose of stay. This is because since the German Residence Act came into force in 2005, residence titles for training purposes could also lead to long-term residence. This meant that they satisfied the requirements for the lawfulness of a habitual residence according to nationality law if they had given the foreign citizen access to a long-term residence status.
In the present case, the plaintiff’s father had had his habitual residence in Germany for more than eight years at the time of the plaintiff’s birth, since an end to his residence had not been foreseeable at any time despite changing purposes of residence. His habitual residence had also been lawful during this period, based on the residence title issued to him, except for an interruption of a few days in 2008. The interruption caused by the late filing of an application was also irrelevant according to section 12b para. (3) of the German Nationality Act.
Source: Federal Administrative Court (Bundesverwaltungsgericht)
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