Germany’s constitution contains a provision that permits citizenship to be granted to descendants of persons stripped of their German citizenship by the former Nazi regime for political, racial or religious reasons.
In practice, this provision, Article 116(2), is mostly – although not exclusively – directed at descendants of Jewish refugees from Germany. Approximately 10,000 German Jews fled to Australia before World War II, due to the policies of the Nazi regime, and there are many descendants in Australia who now wish to become German citizens. A new decree enacted in August gives some of those descendants that opportunity - but does not go far enough.
German legislation precludes the granting of citizenship to various groups of descendants of Jewish refugees. Many applicants have been denied citizenship on the basis that the affected family member was female, because citizenship passed only through the father at the time the German constitution was enacted.
Other applications are denied because German authorities contend that the applicant’s female ancestor willingly gave up German citizenship by marrying a non-German man after escaping Germany.
In other cases, the authorities have denied applications to the descendants of those who the authorities argue left Germany “voluntarily” during the Nazi reign and willingly relinquished their German citizenship -- a position that flies in the face of historical realities. And some applicants have been denied citizenship on the basis that their parents were unmarried, or that the applicant was adopted.
We can see no rational reason why these groups of descendants are excluded for eligibility for German citizenship. As Article 116(2) of the constitution seeks to provide a form of restitution for past injustices, it's imperative that this provision is interpreted in a generous fashion, without drawing arbitrary distinctions between descendants.
A very strong argument can be made that the law is inconsistent with the right to equality under the German constitution, not to mention Germany’s obligations of non-discrimination and the right to private and family life under the European Convention on Human Rights, to which Germany is a party.
In August, the German government issued a decree that attempts to rectify some of the discriminatory aspects of the law. The decree addresses some aspects of the gender discrimination in the current law, and extends citizenship rights to those born before 1949, who were until now precluded from eligibility by a 2012 decree.
However, the decree does not completely remedy the discrimination in the law.
For example, the decree appears to preclude children born out of wedlock to a German mother from eligibility, whereas children born out of wedlock to a German father would be eligible.
While we understand that the decree will be implemented generously, the descendants deserve more legal certainty. Another issue is that the generation born after 31 December 1999 is the last generation to be eligible to obtain German citizenship under the decree. Although an argument can be made that the rationale for restitution lessens with the passage of time, the government has offered no justification for limiting eligibility to this time frame.
Moreover, citizenship will not be granted unconditionally to those who become eligible, unlike claims under Article 116.
For example, descendants of female ancestors need to demonstrate German language skills, but descendants of male ancestors do not. By requiring certain groups to pass the above tests but not others, the law perpetuates gender discrimination.
The determination of whether these criteria are satisfied in an individual case is to a large degree discretionary, based on a subjective assessment made by German consular officials.
We know of people who have received differing information about the application process, depending on which embassy they have approached.
In light of Germany’s track record in relation to granting citizenship under Article 116(2) of the Constitution, there is a need for greater transparency and more objective decision-making criteria to ensure that the decree is given effect to in the manner it was intended.
There are also serious questions as to whether this type of rule-making by decree is appropriate, not to mention constitutionally valid. The difference between a decree and legislation is not merely symbolic. A future government could revoke the decree with the stroke of a pen, whereas changing legislation requires that the proposed law be debated by Parliament.
A law, properly discussed and enacted through Germany’s parliamentary procedures, faces much higher hurdles for reversal. Moreover, another provision of Germany’s Constitution requires that certain ‘essential’ decisions must be made by Parliament, rather than by the executive branch of government in the form of a decree. In our view, there is a strong argument that this issue is one that can only be dealt with by the Parliament.
Germany has a largely commendable track record in confronting its Nazi past. It should do right by the descendants of those who had to flee to save their lives – end decades of protracted, unjustifiable and arbitrary discrimination by enacting a law that provides for a simple path to citizenship for all descendants.
Requiring descendants to fight for their rights in the courts would add insult to injury, and would be particularly difficult for descendants in countries on the other side of the globe such as Australia.
Caroline Henckels is a member of the Article 116 Exclusions Group.
This article was co-authored with Markus Wagner, an Associate Professor of Law at the University of Wollongong.