Note: Due to the changes to nationality law in 2024, this judgement would no longer be decided in this way
Stuttgart Administrative Court, 24.05.2016, Ref.: 11 K 5952/15
The requirements for naturalisation are set out in § 10 StAG.
The requirements listed in § 10 StAG must be met cumulatively at the time the naturalisation is granted. It is not possible to deviate from this - neither through ancillary provisions nor through administrative regulations.
If one of the aforementioned requirements is not met, naturalisation may not be granted. For example, naturalisation may not be granted if benefits are received from the state in accordance with SGB II or SGB XII, such as Hartz IV or social assistance.
The following judgement deals on the one hand with the question of the extent to which an authority can impose ancillary provisions as conditions in relation to naturalisation and on the other hand with the question of the requirements for naturalisation.
Background to naturalisation and conditions imposed
The applicants, born in Germany in 1999 and 2001, have Djiboutian citizenship. Both applied for German naturalisation on 14 August 2014. At that time, they were still minors. They were naturalised on 10 July 2015, subject to the condition that they must lose their Djiboutian citizenship once they reach the age of majority. This condition meant that the applicants had to take all necessary steps to obtain a certificate of release from the authorities in Djibouti. This also included pursuing the procedure seriously and sustainably and allowing the district office to communicate directly with the relevant diplomatic mission abroad. The applicants were also required to document the outcome of the proceedings by submitting the relevant documents. The District Office made it clear that naturalisation was granted on the condition that the applicants renounce their Djiboutian citizenship when they reach the age of majority.
Plaintiffs' objection to the conditions
On 17 July 2015, the applicants lodged an objection to the conditions imposed. Their objection was directed in particular against the request to seriously pursue the procedure for the loss of Djiboutian citizenship and against the obligation to provide proof of release from Djiboutian citizenship. According to the plaintiffs, it is sufficient under Djiboutian law to submit a simple declaration of renunciation. A comprehensive procedure, as required by the German authorities, was not necessary. The plaintiffs argued that naturalisation should not be made dependent on the submission of further evidence, especially as Djiboutian law does not require any further action.
However, the objection was rejected by the Regional Council on 20 November 2015. In its reasoning, the Regional Council stated that, in accordance with Section 10 (1) No. 4 StAG, naturalisation requires the loss of the previous citizenship. The Regional Council further explained that Djiboutian law is characterised by Islamic law and that children up to the age of 18 are represented by their father as their guardian. Therefore, Djiboutian citizenship can only be effectively renounced once the child has reached the age of majority. The Presidium referred to the administrative regulation no. 10.1.1.4 VwV-StAG and the decree of the Ministry of Integration dated 13 September 2013, which stipulate that in cases in which the release from the previous citizenship is only possible after reaching a certain age, naturalisation can take place on the condition that the naturalisation applicant takes the necessary measures immediately after reaching this age.
Filing of suit and positions of the parties
On 15 December 2015, the plaintiffs brought an action before the Stuttgart Administrative Court. They argued that it was sufficient for them to voluntarily renounce their Djiboutian citizenship in order to lose it. In their opinion, further proceedings were not necessary. The plaintiffs argued that naturalisation could not be made dependent on the fulfilment of additional conditions that had no equivalent in Djiboutian law. The defendant, represented by the District Office, applied for the case to be dismissed, arguing that naturalisation had been carried out correctly in accordance with Section 10 StAG and that the renunciation or loss of the previous nationality was a mandatory requirement for naturalisation. The District Office emphasised that the requirement to clarify passport and personal status matters was necessary in order to be able to submit an effective application for renunciation of Djiboutian citizenship. Without the issuance of a national passport by Djibouti, which the applicants did not possess, a mere declaration of renunciation was insufficient. Furthermore, it was emphasised that the applicants' parents refused to apply for a national passport, which raised doubts about the applicants' actual will.
Assessment of the Djiboutian embassy
On 19 January 2016, the Djiboutian embassy in Berlin informed the district office that a declaration of renunciation was sufficient to lose Djiboutian citizenship. It was not necessary for the applicants to appear in person at the embassy, and a declaration from a lawyer would also suffice. After submitting this declaration, all Djiboutian documents such as passport, identity card and driving licence would have to be returned. The embassy went on to explain that it would forward the declaration of renunciation to the relevant authorities in Djibouti, where a decision would then be made on the loss of nationality. This information contradicted the opinion of the regional council, which had demanded that the plaintiffs participate more fully in the proceedings.
Decision of the Administrative Court of Stuttgart
The Stuttgart Administrative Court ruled that the action to contest the conditions was admissible and well-founded. The court declared that the district administration office's decision of 9 July 2015 imposing conditions and the regional council's objection decision of 20 November 2015 were unlawful and infringed the plaintiffs' rights. The court found that naturalisation under Section 10 StAG was unlawful in this case, as the plaintiffs had not lost their Djiboutian citizenship at the time of naturalisation. In the court's opinion, the requirements for naturalisation should have been met in full at the time of the decision. The loss of the previous nationality was a mandatory requirement under Section 10 (1) No. 4 StAG, which had not been fulfilled in this case. It was not possible to waive this requirement, as the requirements of Section 12 StAG regarding the permanent acceptance of multiple nationality were not met.
Inadmissibility of the ancillary provisions and effect of the judgement
The court ruled that the defendant could not base the conditions on Section 36 (1) LVwVfG. Section 36 (1) LVwVfG stipulates that an administrative act can be provided with ancillary provisions if this is permitted by law or ensures that the legal requirements for the administrative act are met. However, there is no legal provision that allows naturalisation with the temporary acceptance of multiple nationalities. As Section 10 (1) StAG defines the loss of the previous nationality as a mandatory requirement, the authorities cannot deviate from this by issuing ancillary provisions. The court found that the requirement to renounce Djiboutian citizenship after reaching the age of majority was inadmissible, as it would be tantamount to an inadmissible waiver of a mandatory requirement. Consequently, the court declared the conditions unlawful and annulled them, even if the naturalisation itself was legally problematic. However, the court could only rule on the claim and could not go beyond the naturalisation process as a whole. As a result, the lawsuit was successfully settled with regard to the conditions, while the fundamental issue of naturalisation remained unaffected.
Source: Administrative Court Stuttgart
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