In general, we may be talking about hundreds of thousands of candidates for German citizenship. Many of them have lost their cultural and ethnic connection with the German people and derive their claims to German citizenship from one long-deceased German grandfather. When it comes to such significant factors as the vital interests of hundreds of thousands of people and citizenship issues, politics already intervenes, and the matter shifts from a purely legal to a political plane.
These explanations make understandable the desire of the Federal Administrative Office to prevent the sudden and simultaneous appearance of a mass of applicants for German citizenship who could gain the right to enter the country and to all the social benefits due to citizens. This could disrupt internal stability and exceed the capacity of Germany's social systems.
Inheritance of German citizenship
The next question that interested parties ask is the issue of inheriting German citizenship. Descendants of a Russian German who was naturalized during the war, individually or collectively, do not automatically and without any further conditions inherit this citizenship at the moment and by virtue of birth. The law knows cases where acquired citizenship can be automatically lost, even against the will of the person concerned. One must choose among the following typical situations:
ь the father is a German citizen, the child is born after the marriage between the German father and a foreign mother. The child acquired German citizenship at the moment and by virtue of birth;
ь the father is a German citizen, the child is born out of wedlock. The marriage between the parents was concluded before September 31, 1968. In this case, the child acquired German citizenship at the moment and by virtue of birth. Citizenship was acquired through the legitimization of the child as legitimate by the subsequent marriage of his parents before the specified final date;
ь the father is a German citizen, the child is born out of wedlock. The marriage between the parents was concluded after September 31, 1968. In this case, the child did not acquire German citizenship at the moment and by virtue of birth. One must reckon with the refusal of the authority to issue a citizenship certificate. This question has not yet been finally resolved by legal interpretation;
ь the mother is a German citizen, the father is a foreigner, the child is born out of wedlock. The mother never married the child's father. The child acquired German citizenship at the moment and by virtue of birth;
ь the child was born after January 1, 1975, and at the time of the child's birth his mother possessed German citizenship. The child acquired German citizenship at the moment and by virtue of birth, regardless of the mother's marital status (married or not) at the time of birth;
ь a legitimate child was born to a German mother and a foreign father before March 31, 1953. This is a hopeless case, providing no basis for a claim to the granting of German citizenship. The decisive factor here is the non-German citizenship of the child's father;
ь the mother is a German citizen, the father is a foreigner, the child is born out of wedlock. The marriage between the parents was concluded before September 31, 1968. The child acquired German citizenship at the moment and by virtue of birth as an illegitimate child of a German mother. He lost this citizenship as a result of legitimization as a legitimate child of a foreign father. Such was the letter of the citizenship legislation in force at the time. Many serious lawyers consider this provision contrary to the constitution with respect to children born after April 1, 1953. I must say that by now this question should be considered clarified. A change in the mother's marital status (marriage to the foreign father of the child) does not lead to the loss of citizenship by their common child;
ь the mother is a German citizen and is legally married to the foreign father of her children. The legitimate children were born between April 1, 1953 and December 31, 1974. I would like to examine this practically important case in more detail.
Declaration of one's desire to become a German citizen
According to the old citizenship law, German mothers passed on their citizenship only to illegitimate children. From the standpoint of securing citizenship, the optimal choice was to refrain from subsequently marrying the father of the illegitimate child. Exceptions exist everywhere, but until the end of 1974, the principle of transferring citizenship exclusively through the father for legitimate children and through the mother for illegitimate children was in force.
For legitimate children of German mothers, Article 3, Paragraph 1 of the Law on the Amendment of the Reich - and State Citizenship Act of 1974 (Art. 3 Abs. 1 Gesetz zur Aenderung des Reichs - und Staatsangehoerigkeitsgesetzes 1974) provided for the granting of German citizenship by submitting a written declaration of one's desire to become a German citizen. Such a declaration can be submitted to any official German institution both in Germany itself and abroad.
With regard to the submission of such an application, however, things are not so simple. The general deadline for filing declarations ended in 1977. Objective obstacles to the timely filing of a declaration, not attributable to the persons concerned, give them the right to perform the act of expressing the required will within an additional six-month period. The six-month period begins to run from the moment these obstacles are removed.
The classic obstacle to filing a declaration was the existence of the Soviet Union. Since 1990, different rules apply. In any case, the competent German authorities have ruled that for residents of Russia and Kazakhstan who submitted an application of their desire to become German citizens before 1992-93, it can be recognized without problems as a timely filed declaration. For citizens of Ukraine, the German authorities consider all declarations submitted after January 1, 1993 to be late.
These actions of the competent German authorities are based on internal departmental instructions and in many cases do not reflect the realities of life. The schematic bureaucratic approach does not take into account the difficult fate of Russian Germans during the war and postwar period. Moreover, ignorance of the fact of the mother's naturalization is very, very widespread. Women did not talk about this even on their deathbeds, fearing to let down their relatives and close ones. Only after the collapse of the USSR did opportunities arise for real actions and inquiries to foreign archives about the fate of relatives. Therefore, the big question remains: is ignorance of the mother's fate such an objective obstacle that arose through no fault of the applicant?
Another important detail. It concerns the descendants of women deported deep into the USSR in 1941 who acquired German citizenship under the "List of the German People of Ukraine". It is clear that in distant Kazakhstan or vast Siberia these women never saw a single German soldier or a single official of the occupation administration. In this situation, a non-lawyer logically cannot think of filing any declarations or making inquiries at the German embassy about possibly existing German citizenship. Even an appeal to the German embassy would lead to an unequivocal refusal by diplomatic officials to recognize the applicant as a citizen of the FRG. This situation should be recognized as an objective factor that prevented the submission of the required declaration.
A different matter is the individual granting of German citizenship. Here, interested parties can be expected to take their own initiative and make inquiries about the meaning of this citizenship and the ways of passing it on to descendants. As usual, individual cases are possible here too. For example, a one-year-old girl was naturalized as part of her parents' family. A few months later, the family was returned to the USSR. The girl's parents died soon afterwards; she was raised by relatives and did not know about her citizenship. Only in 1999 did a request to the Federal Archive of the FRG make it possible to establish this citizenship. In this case, the descendants of the German citizen must submit the required declaration within six months after receiving information about the mother's citizenship.
Therefore, I strongly recommend that all interested persons also currently submit such declarations of their desire to acquire German citizenship. Attention should be paid to the immediate submission of one's declaration of intent. Otherwise, one may again encounter the argument of a late submission of the required declaration. I also believe that an application for the issuance of a citizen's certificate can be interpreted as such a declaration. For precautionary reasons, however, I still recommend, regardless of other circumstances, submitting this declaration separately. Its key phrase should sound approximately as follows: "I want to become a German citizen" (Ich will deutscher Staatsangehoeriger werden). The declaration must be written in German and contain the applicant's own handwritten signature.
The submission of a petition for the establishment of German citizenship to the Federal Administrative Office in many cases ends in refusal. It is formalized in a special rejection decision (Ablehnungsbescheid). Within one month after receiving the refusal, it must be appealed, also to the Federal Administrative Office. The rejection of the protest must be challenged by filing a lawsuit with the administrative court of the city of Cologne (Verwaltungsgericht Koeln).
One should also remember the deadlines for performing various legally significant actions.
A loophole for those who have already missed all deadlines for filing a protest or a complaint with the court. In a number of cases, these persons may file a petition for the establishment of German citizenship directly with the administrative court of Cologne, despite the closure of the administrative proceedings on their application.
Material assistance and activity of diplomats
I would like to share positive news for many applicants living abroad. The issues of "list" citizenship are very topical, and the legal situation speaks in their favor. Therefore, the judicial authorities of the FRG provide eligible plaintiffs with material assistance for conducting the court proceedings in their citizenship case. To obtain state aid, you need to contact a German lawyer, who alone is authorized to prepare and file applications for material assistance. I would like to emphasize once again: the FRG pays for foreign plaintiffs to conduct their "list" citizenship case in the competent German court. That is how important this issue is for all parties.
I have received information that German foreign missions, especially in Ukraine, are actively trying to dissuade interested persons from filing an application for the granting of citizenship. For this purpose, embassy staff hold information meetings, field seminars, etc. A legitimate question arises: where were the embassy staff and field seminars in 1991-93, when, in the common opinion of specialists, a declaration of one's desire to become a German citizen could have been submitted within the prescribed period?
Thomas PUE,
German lawyer.