History Completes Itself: Will Germany’s New Law Finally Fix Citizenship Problems for Victims of Nazi Germany?
By Andrew Malec
Within Germany’s Constitution, known as the Basic Law, or Grundgesetz,[1] a provision exists that allows an individual who, due to Nazi persecution, was denied German citizenship to restore their citizenship in the country. Article 116 par. 2 of the Basic Law states the following:
Former German citizens who between January 30, 1933 and May 8, 1945 were deprived of their citizenship on political, racial, or religious grounds, and their descendants, shall on application have their citizenship restored. They shall be deemed never had been deprived of their citizenship if they have established their domicile in Germany after May 8, 1945 and have no expressed a contrary intention.[2]
However, even with this Constitutional provision in place, many applicants seem to be falling outside of the scope of the law.[3] This has caused new backlash against the German government as many social and political groups are calling the denial of these recent applicants as unjust and immoral.[4]
To begin, it is important to recognize that the majority of individuals who apply for denaturalization under 116 are German Jews and members of political groups that were in opposition with the Nazi party at that time.[5] Why were individuals denied German citizenship in the first place? During WWII and the preceding time period, the Nazi party enacted laws that granted them the authority to revoke a person’s citizenship if the person was Jewish or because of their political affiliation.[6] The revocation of German citizenship started in 1933[7] with the “Law on the Revocation of Naturalisations and the Deprivation of German Citizenship.”[8] Additionally, this allowed the government to deprive individuals of their citizenship on an individual basis, either through a personal letter or publication of their names in German newspapers.[9] However, in 1941, the “Eleventh Decree to the Law on the Citizenship of the Reich” was the law responsible for most of the revocations of German Citizenship. This law stripped Jewish German citizens living outside of the country of their citizenship.[10]
So, with the passage of Article 116 par. 2, why are some applicants being denied re-naturalization? First, under Article 116, par. 2, persons deprived of German citizenship due to Nazi persecution can gain citizenship once again “only if the descendant would have been considered German under German law, had the deprivation not taken place.”[11] This primarily affected children born in wedlock sine German citizenship “could only be passed through the paternal line until 1974 . . . the German government retroactively gave children born in wedlock to German mothers and non-German fathers to right to receive German citizenship. [12] This was only an option, however, for those born after [March 31, 1953]. Those born before tis date were still excluded.”[13] Other have also been denied because relative fled Germany and changed their citizenship before the laws officially revoked their citizenship.[14]
In the face of skepticism and criticism, what has been done so far? To the dismay of many, the language of the Constitution has not been amended, however German lawmakers issued a “directive” in August 2019 that applies to the Nationality Law, paragraph 14 which would give a “privileged status.”[15] These decrees would also “permit some of the descendants of Nazi persecution to apply for discretionary naturalization under the Nationality law.”[16]In May 2020, a Federal Constitutional Court decision also expanded the scope Article 116.
With immediate effect, the term “descendants” within the meaning of Article 116(2) sentence 1 of the basic law also includes:
1) children born in wedlock prior to 1 April 1953 to mothers who were forcibly deprived of nationality and foreign fathers;
2) and children born out of wedlock prior to 1 July 1993 to fathers who were forcibly deprived of their German nationality and foreign mothers.[17]
However, as many did not see these changes as going far enough, a new law has been planned, and on March 24, 2021, German lawmakers adopted a draft law to further expand the scope of the law.[18] The new law would “create a new legal framework for the restitution of citizenship” and includes “entitlements to naturalization for persons who lost their German citizenship due to [Nazi persecution] who are not already entitled to restoration” under the current law.[19] Overall, these new amendments would be said to close “loopholes” that previously existed that allowed for so many applicants, who were denied citizenship due to Nazi persecution, to be rejected altogether.[20] Germany’s Interior Minister, Horst Seehofer stated “[t]his is not just about putting things right, it is about apologizing in profound shame . . . it is a huge fortune for our country if people want to become German, despite the fact that we took everything from their ancestors.”[21] This is not to say that all criticism has ended, but at least there are still modern attempts to correct past wrongs.[22] Josef Schuster, the President of Germany’s Central Council of Jews stated: “This injustice cannot be undone. But it is a gesture of decency if they and their descendants are given legal opportunities to regain German citizenship.”[23] Overall, time will tell how effective the new measures will be in ensuring citizenship for those who were persecuted so long ago and denied citizenship.
[1] Michael Stuchbery, Grundgesetz: What Does Germany’s ‘Basic Law’ Really Mean? The Local (May 20, 2019) thelocal.de/20190520/german-grundgesetz-turning-70-but-what-does-the-basic-law-actually-mean/.
[2] Grundgesetz [GG] [Basic Law], Article 116, par. 2.
[3] Germany Eases Citizen Rules for WW2 Refugee Descendants, BBC News (Aug. 30, 2019) bbc.com/news/world-europe-49523933.
[4] See Who We Are¸ Article 116 Exclusions Group https://www.article116exclusionsgroup.org/about.
[5] See Restoration of German Citizenship, German Missions in the United States (last visited Apr. 1, 2021) https://www.germany.info/us-en/service/03-Citizenship/restoration-of-german-citizenship/925120#:~:text=Article%20116%20par.&text=%E2%80%9CFormer%20German%20citizens%20who%20between,application%20have%20their%20citizenship%20restored.; see also See Who We Are¸ Article 116 Exclusions Group https://www.article116exclusionsgroup.org/about.
[6] See Who We Are¸ Article 116 Exclusions Group https://www.article116exclusionsgroup.org/about.
[7] It is commonly mistaken that the Nuremberg laws deprived individuals of their citizenship in 1935, however, the deprivation began in 1933. See Stanley Johnson, Blog, Explained: Nazi Laws Which Stripped Jewish Germans of Citizenship, and the Laws Restoring It, Passportia (May 11, 2018) https://passportia.org/blog/5195-explained-nazi-laws-which-stripped-jewish-germans-of-citizenship-and-the-laws-restoring-it.php.
[8] Stanley Johnson, Blog, Explained: Nazi Laws Which Stripped Jewish Germans of Citizenship, and the Laws Restoring It, Passportia (May 11, 2018) https://passportia.org/blog/5195-explained-nazi-laws-which-stripped-jewish-germans-of-citizenship-and-the-laws-restoring-it.php.
[9] See Id.; see also Who We Are¸ Article 116 Exclusions Group https://www.article116exclusionsgroup.org/about.
[10] See Restoration of German Citizenship, German Missions in the United States (last visited Apr. 1, 2021) https://www.germany.info/us-en/service/03-Citizenship/restoration-of-german-citizenship/925120#:~:text=Article%20116%20par.&text=%E2%80%9CFormer%20German%20citizens%20who%20between,application%20have%20their%20citizenship%20restored.; see also See Who We Are¸ Article 116.
[11] Much Ado About Nothing¸ Blog, https://germanpassport.co.uk/much-ado-about-nothing/.
[12] Who We Are¸ Article 116 Exclusions Group https://www.article116exclusionsgroup.org/about.
[13] Who We Are¸ Article 116 Exclusions Group https://www.article116exclusionsgroup.org/about.
[14] Germany: New Law Eases Citizenship for Descendants of Nazi Victims (last visited Apr. 1, 2021) https://www.dw.com/en/germany-new-law-eases-citizenship-for-descendants-of-nazi-victims/a-56977454.
[15] Much Ado About Nothing¸ Blog, https://germanpassport.co.uk/much-ado-about-nothing/.
[16] August 2019 Decrees: Naturalisation Under § 13 StAG¸ Article 116 Exclusions Group https://www.article116exclusionsgroup.org/about.
[17] See Restoration of German Citizenship, German Missions in the United States (last visited Apr. 1, 2021) https://www.germany.info/us-en/service/03-Citizenship/restoration-of-german-; see also Tarik Tabbara, Reparations for Injustice: The German Constitutional Court Decides on Generous Access to Citizenship, GlobalCIT (June 24, 2020).
[18] Agence France-Presse, Germany Eases Citizenship Rules for Descendants of Nazi Victims, The Guardian (Mar. 24, 2021) https://www.theguardian.com/world/2021/mar/24/germany-eases-citizenship-rules-for-descendants-of-nazi-victims
[19] Agence France-Presse, Germany Eases Citizenship Rules for Descendants of Nazi Victims, The Guardian (Mar. 24, 2021) https://www.theguardian.com/world/2021/mar/24/germany-eases-citizenship-rules-for-descendants-of-nazi-victims
[20] Id.
[21] Germany: New Law Eases Citizenship for Descendants of Nazi Victims (last visited Apr. 1, 2021) https://www.dw.com/en/germany-new-law-eases-citizenship-for-descendants-of-nazi-victims/a-56977454.
[22] Id.
[23] Id. See also Germany: New Law Facilitates Citizenship of Descendants of Nazi Victims¸ (March 24, 2021) https://www.uktimenews.com/germany-new-law-facilitates-citizenship-of-descendants-of-nazi-victims-uktn-24-03-2021/.