Urgent measures were required that, if not guarantee, then at least create reliable prerequisites for turning the "new Germans" into active members of society with high chances of employment, who know and obey the laws of their new homeland. To solve the problem, the Federal Ministry of the Interior together with the state ministries developed and adopted in May 2006 a new, unified concept for the whole country on acquiring German citizenship. The proposed innovations became the basis for changes in current legislation.
Essence of the innovations
In addition to deeper knowledge of the German language, applicants for German citizenship must demonstrate knowledge of the German Constitution and the socio-political system of the country. To this end, a test based on a specially developed program is introduced. To prepare for the test, it is proposed to first take a course on "Legal and Social Order and Living Conditions in the Federal Republic of Germany."
The required level of language knowledge must be confirmed by a certificate of passing an exam at the level of certificate B1 on the European scale or the German certificate – Zertifikat Deutsch. If during the submission of documents the applicant demonstrates in a conversation that he or she has a good command of the language, the naturalization officer has the right to waive the requirement to present a certificate. Previously obtained certificates from various language courses that do not confirm level B1 or Zertifikat Deutsch are henceforth considered insufficient. Also abolished was the practice in some states of taking an oral exam directly when submitting documents.
Foreign spouses of native residents or already naturalized immigrants who wish to obtain German citizenship must also prove their language skills. Previously, they were exempt from this obligation because it was believed that the spouse with citizenship could always solve the problems arising in this part for his foreign half.
A new condition for Jewish immigrants became, as is known, the need to renounce citizenship of their previous country of residence.
The law also introduced changes concerning certain groups of applicants. Requirements for persons punished for violating the law have been tightened – henceforth naturalization will be possible if the imposed fine does not exceed 90 days' earnings (previously 180 days' earnings), and if imprisonment occurred, it must not exceed 3 months (previously 6 months). The provision allowing naturalization of foreigners under 23 years of age, even if they lived on social benefits, has been abolished.
Legalize as quickly as possible
Closing the May conference of interior ministers, the meeting curator – head of the Bavarian Interior Ministry Günther Beckstein officially assured colleagues that the new rules would come into effect by the end of 2006. For their part, the ministers also made every possible effort to quickly implement the innovations they proposed. According to press reports, they repeatedly lobbied in parliament for the immediate consideration and adoption of the new naturalization procedure.
However, other equally important issues were on the agenda. The need to increase internal security due to the growing terrorist threat and the need to align German national legislation with European legislation forced the government to review practically all regulations included in the package of laws on foreigners adopted just two years earlier – the Zuwanderungsgesetz.
The introduction of the new naturalization rules was timed to coincide with the upcoming broad reform of the entire immigration legislation.
The corresponding draft was submitted by the Federal Government at the very beginning of 2007. The ministers understood that adopting a comprehensive document affecting various areas of legal relations of foreigners and containing sometimes very unpopular decisions would require at least several months. Therefore, they decided to hedge their bets with the timing of the introduction of individual provisions of the new law. That is when the draft included a wording that gave naturalization services the right, after the law was adopted – and there was no doubt that it would be adopted – to apply the new requirements retroactively, i.e., to previously submitted citizenship applications. And it was recommended that the date of transition to the changed rules be set as the day the draft was officially submitted to parliament for consideration.
The draft of the new law, spanning over 400 pages – the EC-Richtlinienumsetzungsgesetz – was submitted to parliament on March 30, 2007. Two and a half months later, on June 14, despite harsh criticism from the opposition, the draft was adopted almost without amendments by the coalition majority of the Bundestag, and another twenty days later, on July 6, was approved with minor comments by the Bundesrat. However, the final stage – the signing of the law by the president – was somewhat delayed: a wave of mass protests by foreigners and supporting public swept across the country, demanding the cancellation or revision of some of the introduced provisions. Nevertheless, after another month and a half, the law was signed and came into force on August 28 of last year.
Mistake or calculated decision
As the ministers planned, the final text set March 30, 2007 as the day the new rules would begin to apply. This date became a kind of "X-day" for some applicants for German citizenship. People who had submitted their documents several months earlier and were now waiting for notifications from the authorities about the approval of their applications instead received notices containing requirements to first renounce their previous citizenship and to fulfill additional conditions – to study the language better, in some cases to renounce social benefits, to wait for the final removal of a criminal record.
What guided the deputies in allowing the introduction of tightening provisions before the adoption of the law as a whole? What prompted the parliamentarians to agree with the government's proposal and extend the well-known postulate on protecting the trust of the country's residents in the legislative authority (that is, the provision on the absence of retroactive effect of the law) not to all applicants who had already submitted petitions for citizenship, but only to those who submitted documents before a certain date?
The version that the legislators simply overlooked the controversial formulations slipped to them by government officials amid the abundance of issues under discussion should most likely be dismissed. Apparently, we are talking about a deliberate, perhaps even legally precise decision. This is evidenced, if only by the fact that the effective date of one of the new requirements, namely the testing of applicants' knowledge of the Constitution and the social order, was not included in the general timeframe but was postponed for a year due to the need to develop a testing program and organize special courses. This indicates that the issue of timing was considered, meaning the ministers were able to convince the deputies of the need for the immediate introduction of the requirements described above. At the same time, the parliamentarians themselves could not have been unaware that the decisions they were making were not entirely correct.
And the authors of the new concept—the federal and state interior ministries, who advocated for the rapid implementation of their brainchild—could not have failed to understand that their 'preemptive' introduction of tightening measures would lead to complications for some immigrants who had already submitted documents. And if they understood, they should have at least tried to eliminate possible adverse consequences: for example, send circulars to subordinate local agencies instructing them to suspend acceptance of applications until the new law officially entered into force (as was done in its time when changing the regulations for accepting Jewish immigrants), or at least warn applicants in advance about a possible review of already accepted cases. None of this was done—naturalization departments in various cities continued to accept documents after March 30, guided by the previous, still-in-effect provisions, as local officials believed.
Of course, after receiving new instructions, local agencies could have continued to process previously submitted applications under the old rules, turning a blind eye to the changes. Perhaps they sometimes did so. However, judging by readers' letters, in some places, agency employees considered it necessary to strictly follow the letter of the amended law and demanded that their wards fulfill all the newly prescribed conditions.
Public benefit or the interests of individual citizens
Thus, there are grounds to believe that the decisions made by the legislature and the actions of the executive branch are not entirely correct, and therefore one can attempt to challenge them in court. However, what are the chances of success—that is the main question that today worries applicants who, by a fortuitous coincidence, found themselves in a difficult situation. Is it worth spending effort, nerves, and finally financial resources on revising provisions established by federal law? After all, consideration of lawsuits of this kind will likely not be limited to state-level instances but will reach the all-German level.
Here, attention should be paid to one peculiarity of German legislation: while in criminal law the principle of non-retroactivity applies absolutely (a person cannot be convicted for any actions before they are recognized as criminal by law), German administrative law allows situations where applying the law to events that occurred before its entry into force is considered justified. According to the Constitutional Court, such a situation is possible, in particular, if new decisions are necessary for the good of society and the resulting costs are relatively small.
Creating the prerequisites for successful labor and social integration of new German citizens may well be regarded as a phenomenon much more important for German society than the private and generally solvable problems of individual citizenship applicants. Moreover, it cannot be overlooked that the number of those 'affected' by the rule changes is relatively small and is an insignificant quantity compared to the total number of foreigners receiving citizenship.
On the other hand, it must not be forgotten that these few are living people, unexpectedly and through no fault of their own, faced with the need to fulfill new, often difficult conditions for many of them, experiencing severe stress as a result and forced at times to radically change life plans, and possibly their entire future fate. Purely from a human perspective, this argument, you will agree, may be sufficient to decide the outcome of complaints in favor of citizenship applicants.
But whether the judges will take a similar position, weighing on the scales of justice the benefit to society on one hand and the interests of its individual members on the other, is difficult to say.
M. MIRONOV. 