Let us consider the situation using the example of V. Schmidt, a late resettler from Kazakhstan who moved to Germany in 1994 and almost immediately became a so-called 'status German.' V. Schmidt will become a full citizen of the country only after naturalization. V. Schmidt's acquisition of German citizenship is determined by the certificate of late resettler and the certificate of naturalization.
In the previous decade, the waiting period for a certificate of naturalization was up to two years. This two-step procedure of 'status German – naturalized German' was abolished only in 2000. After August 1, 1999, admission to Germany under the status of late resettler automatically means naturalization as a German citizen. The need to submit a separate application for a certificate of late resettler and then wait another two years for a certificate of naturalization has been eliminated. It should be noted that for most late resettlers, the two-year wait did not cause any problems.
It so happened that at the beginning of 1995, V. Schmidt decided to return to Kazakhstan for personal reasons. Having experienced culture shock after the move, many did the same back then – having barely arrived in Germany, they immediately left it. According to the former law on expellees of German nationality, the return of a status German to the country of origin deprives him of the status of late resettler and the right to live in Germany..
If V. Schmidt had returned to Kazakhstan already holding a German citizen passport, he would have had no problems with returning. German citizens are free to leave the country and return at their discretion. But V. Schmidt left Germany without waiting for the issuance of the certificate of naturalization and the certificate of late resettler. In 1999, V. Schmidt petitioned the German embassy in Kazakhstan for re-entry into Germany for permanent residence. The embassy rejected the petition due to the lack of a legal basis for resettlement.
Voluntary departure from Germany with the intention of long-term residence in the country of origin deprived V. Schmidt of the legal status of a status German. Such a provision did exist until July 31, 1999, and deprived many Russian Germans of the right to live in Germany.
In my time, I conducted a number of legal proceedings regarding re-resettlement to Germany. Disputes with the admission authority were about the concept of 'voluntary return.' After all, it could have been that V. Schmidt's departure to Kazakhstan implied a limited stay for settling family matters, but then, as they say, 'life got in the way,' and he had to stay in the country longer than planned. The essence of the proceedings was to prove the absence of intention to leave Germany for long. Sometimes this could be proven, sometimes not. The new legislation on late resettlers abolished the loss of the right to live in Germany upon return to the country of origin. After admission to Germany, a Russian German immediately becomes a citizen of the country, bypassing the stage of a 'status German.'
Recently, a positive decision was achieved for a Russian German who, while staying in Kazakhstan, sought the issuance of a late resettler certificate under §15, Paragraph 1 of the BVFG. At the time, he could not obtain it as a result of his hasty return to Kazakhstan. The Federal Administrative Office rejected the application, citing the loss of the former legal status of a status German as a result of returning to Kazakhstan. The office considered the desire to obtain a late resettler certificate after many years of living in Kazakhstan to be an abuse of law.
The court had to decide on the applicability of the new legal provision to old cases of return of status Germans to the country of origin. The court granted the claim of the Russian German, citing the changes in the law favorable to the plaintiff, and awarded him the status of late resettler. The court drew an important line and ruled that one can lose the legal status of a 'status German' while retaining the right to a certificate of late resettler. The court ordered the Federal Administrative Office to issue a late resettler certificate (Spätaussiedlerbescheinigung nach §15 Paragraph 1 BVFG) to the Russian German living in Kazakhstan.
The current version of the legislation on late resettlers equates the issuance of the certificate to naturalization as a German citizen. Upon presentation of the late resettler certificate, a Russian German can demand from the German foreign representation in Kazakhstan the issuance of a German citizen passport. In this way, the judicial authorities of the Federal Republic of Germany have opened new prospects for 'returnees' for re-resettlement in Germany.