Naturalization by Deceit

The BVerfG decided on May 24, 2006, (re 2 BvR 669/04) in a very interesting case about becoming naturalized by fraud. Can your German citizenship be revoked? And if so, what about the status of those who derived their citizenship from the betrayer?

The court had to decide the questions:

Does art. 16 I 1 GG generally bar the revoking of a fraudulently obtained citizenship?
Does §48 VwVfG - BW suffice as an authorization to revoke citizenship?

Art. 16 I 1 GG forbids that a German becomes stateless, i.e. without a citizenship. The law, however, supposes only that the persons correctly apply. The Court argued that the legislator did not have the need to protect an unlawful naturalization because the applicant submitted false details. It was also not the legislator’s task to regulate the possibility that somebody fraudulently obtains German citizenship in citizenship law. The intention of the legislator was to prevent misuse of expatriations as they have occurred in the past. It is considered as essential that the citizen can rely on his citizenship. To rely on one’s citizenship is also the predictability of its withdrawal.

Since no special law rules the case, the general rule can determine the legalities. Such general rule can be found in §48 VwVfG - BW. This section generally sets the rules to withdraw a granted administrative act.

So far, nothing really special for a lawyer was to be decided. The third question, however, is very exciting. What happens to third persons who derived their legal status, especially German citizenship, from the betrayer and these persons were innocent? The court did not set any rules. The judges assigned this task to the lawmaker. Do you believe that this is “inadequate” that the judges forwarded the question to the lawmaker? Please understand it is not the profession / constitutional task of the judges to create new but only to interpret existing law. Law is made by parliament. This is meant when lawyers talk of “Division of Powers”.

Keep in mind that this precedent rules exactly the case whereas the applicant deceitfully applies and the authorities promptly revoke the granted citizenship. It will be another case if the authorities notice the deceit years later.

Published on the old CMS: 2006/8/2
Read on the old CMS till November 2008: 386 reads