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New possibilities for Jewish émigrés from Germany and Austria, new obstacles for those from former Czechoslovakia

In Germany, a liberalization of the Citizenship law is planned this year. In Austria, since September 2020 more than 15.000 applications have been submitted by Jewish émigrés and their descendants. But in the Czech Republic… 

Germany

In Germany, a liberalization of the Citizenship law (Staatsangehörigkeitsgesetz, StAG) is planned this year, enabling many more Jewish émigrés and all of their descendants to apply for German citizenship until mid-2031. In Austria, since September 2020 more than 15.000 applications have been submitted by Jewish émigrés and their descendants, but in the Czech Republic, despite of a liberalization since September 2019, the Beneš decree No 33/1945 Sb. of 2 August 1945 shall be applied on many Jewish survivors of the Holocaust, who were German speakers.

The German Government has decided upon a draft law changing the StAG, which was published on 26 March 2021 on the website of the German Bundesrat, the Upper chamber of the German Parliament. This Draft law shall deal with the injustice of the past and provide for a restitution of citizenship by granting the applicants clear claims in the StAG (in German: “Schaffung von gesetzlichen Ansprüchen zur staatsangehörigkeitsrechtlichen Wiedergutmachung“.

For the first time since 1949, legal stipulations in the StAG shall spell out the rule of Art. 116 clause 2 GG, which guarantees, that the German citizenship taken away between 30 January 1933 and 8 May 1945 because of racial and political reasons, shall be given back to those persecuted – and as well to their descendants. This difficult concept caused many questions in the practice of the restitution. The Draft law shall respond to the jurisdiction of the German Constitutional court – especially the decision of the German Constitutional Court of 20 May 2020 (Case-number: 2 BvR 2628/18) -, shall clarify the new practice and replace the decrees of the Federal Ministry of the Interior German (BMI) (see our previous articles here, here and here).

The Draft law establishes a new possibility of an acquisition of German citizenship on the basis of a declaration according to a new resp. enlarged § 5 StAG Draft Law: a child born after 23 May 1949 (when the GG took force) to a parent, who was not a German citizen at the time of the birth, can declare to acquire German citizenship, as the child could not acquire the German citizenship by birth. This declaration has to be made within 10 years after this Draft law will take force. Thus, this deadline runs until mid-2031, thus 98 years after Hitler took power or 86 years after the end of the Second World War. This is a very generous time frame.

In addition to that, a new § 15 StAG Draft Law introduces a new possibility of acquiring German citizenship for persons, who were subject to “acts of persecution because of reasons, mentioned in Art. 116 clause 2 sentence 1 GG, between 30 January 1933 and 8 May 1945”, but had no possibility to reacquire German citizenship, in the following cases:
- losing or giving up German citizenship before 26 February 1955 (No 1),
- exclusion from acquiring German citizenship because of entering a marriage, of legitimation or of exclusion of mass naturalization (No 2),
- exclusion from a naturalization after applying or general exclusion from a naturalization (No 3), or
- losing or giving up of the residence in Germany, if such a residence had been maintained before 30 January 1933 or in the case of a child later, after 30 January 1933 (No 4) and
- if the applicant has a clean criminal record and meets further conditions (this applies as well to the declaration of § 5 StAG), but there is no German language requirement.

There is no deadline for the procedure according to § 15 StAG Draft law. In addition, there is another benefit: both group of applicants (according to § 5 and § 15 StAG Draft law) are not subject to the generation cut in § 4 clause 4 sentence 1 StAG – for those cases this would have been anyway unconstitutional because of Art. 116 cl. 2 GG). As a general rule, this generation cut, introduced in 2000 as a part of the big reform of the German citizenship law, means, that children of those applicants, who were born like their parents abroad and both in the new millennium (beginning 1 January 2000), can not acquire German citizenship, unless their birth is registered within one year after birth with the German authorities in Germany or abroad. Until 2020, this was de facto not yet applicable, as the parents shall be born after 1 January 2000, too, but this begins to be possible now.

As a result, most groups of applicants, which were so far not encompassed by art. 116 cl. 2 GG, but only covered by the decrees of the BMI, and even more cases are now covered, either under § 5 or § 15 StAG Draft law. This applies to the following groups of applicants:
- loss of German citizenship because of early or subsequent naturalization between 30 January 1933 and 8 May 1945 or later (e.g.: an emigrant was naturalized as US citizen in 1940, thus losing German citizenship because of § 25 RuStAG, before his German citizenship would have taken away on 25 November 1941 by the 11th regulation to the Imperial citizenship law);
- German women, marrying after 1933 a foreigner – they lost German citizenship automatically because of § 17 No 6 RuStAG (this rule was valid until 31.3.1953), before their German citizenship would have taken away in 1941 or they would have lost it anyway until 31.3.1953;
- no realistic naturalization before 30 January 1933 or denial of naturalization between 30 January 1933 and 8 May 1945 (e.g. Polish Jews raised in Germany could practically not receive a German passport in the Weimar republic, after 1933 their naturalization was forbidden by law),
- denial of German citizenship to German speaking persons of Jewish origin in mass naturalizations in occupied territories (e.g. ethnic Germans were automatically naturalized in Sudetenland after 1 October 1938, in the Memel-territory after 15 March 1939 and in the Free City of Danzig after 1 September 1939, and after 15 March 1939 in the Protectorate Bohemia and Moravia and later in other occupied territories), but Jews were exempt of this a rule. Thus, those Jews were subject to German persecution, but they were never German citizens, thus never entitled for an application under Art. 116 cl. 2 GG.

The Draft law does not contain any transitionary stipulations. For those applications, which are already pending, but not yet decided (it is estimated: between 20-30000 cases with the BVA), it can be expected, that they will be dealt with under the more favourable new stipulations and that they will be switched automatically to them. Thus, there is no need to wait with applications.

All applications under § 5 and § 15 StAG Draft Law are exempt of application fees. The German government expects between 1500 applications (first scenario) and 5000 applications every year (second scenario). Which scenario is more realistic, is difficult to say, but the effects of Brexit and the attractivity of the EU-citizenship, provided for by the German citizenship, has led to more successful applications by emigrants since 2016: more than ca. 10000 applications were submitted in every of the last five years. The Bundesverwaltungsamt in Cologne (BVA) is competent for applications from abroad. However, applications, which were not successful, are not counted in those statistics. Further, successful applications, which were submitted by applicants within Germany and thus administered by the authorities of the German Länder (most likely, those numbers shall not be very high, a maximum of several hundreds of cases every year), are not contained in any statistics.

Austria

At the same time, the Austrian Embassies – resp. the Magistrate 35 in Vienna - have received already more than 15000 applications, since the changes took force in September 2020 in the Austrian law of citizenship. Those émigrés, who left Austria until 15 May 1955 (date of the signing of the so-called State Treaty – Staatsvertrag) because of political and racial persecution, are entitled to apply. This is the only deadline given, but emigrations already as early as 1934 entitle for a restitution of Austrian citizenship, too, although the Anschluss of Austria to the German Reich took effect 15 March 1938.

Czech Republic

On the contrary, emigrants from Czechoslovakia and their descendants face unexpected new resp. old problems: they can apply for Czech citizenship since September 2019 on the basis of § 31 clauses 1 and 3 of the Czech citizenship law (Law 186/2013 Sb.), but only in the case, if they have not lost the Czechoslovak citizenship on the basis of the decree 33/1945 Sb. This constitutional decree, signed on 2 August 1945, the last day of the Potsdam conference, by the pre- and postwar Czechoslovak president Dr. Edvard Beneš, led to the expulsion of more of three million Czechoslovak citizens of German and Hungarian ethnicity from then Czechoslovakia and was applied mechanically to all persons, whose mother tongue was German and Hungarian. Bizarrely, the Czech Ministry of the Interior thinks, that this decree is still valid in 2021. As a result, many German speaking Jews who survived the Holocaust, formally fall under this decree, making applications of their descendants for Czech citizenship impossible. It is very questionable for a EU-member state to apply such a discriminatory stipulation 76 years after the Second World War. In addition, by doing this, the Czech Republic contradicts to the declaration of 2002 – made by EU commissar for enlargement Günther Verheugen and the then Czech Prime minister Miloš Zeman, now the Czech president -, that this Beneš decree had no effect anymore upon entering the European Union and were “extinct”. However, it this was reintroduced in 2013 in the § 31 clause 1 of the Czech citizenship law by a simple referral through the back door.

Source:
https://www.bundesrat.de/SharedDocs/drucksachen/2021/0201-0300/249-21.pdf;jsessionid=82BBBBC37A7D075E778B2EA823D9F52A.1_cid382?__blob=publicationFile&v=1

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