Higher Administrative Court of Bremen, Judgment of 10.03.2020 – 1 LC 171/16
There are several ways to obtain German citizenship. The simplest is if you have at least one German parent and live in the Federal Republic of Germany, as this automatically grants German citizenship. But what happens if the supposed German parent is not the biological parent after all?
In the present case, a nearly one-year-old child lost its German citizenship because it turned out that the presumed German father was not the biological father. The lawsuit against this was dismissed, but the Higher Administrative Court of Bremen overturned this judgment because there was no legal provision stating that German citizenship would be lost if paternity is contested.
Facts of the Case:
The plaintiff sought the determination that he is a German citizen.
The plaintiff was born in 2014 and was therefore almost one year old. His mother was a Ghanaian citizen, and the German citizen J.A. was registered as his father, to whom the mother was married at the time of the plaintiff’s birth, granting the plaintiff German citizenship as well. Later that year, K.A. filed a paternity recognition, which the mother agreed to. On October 8, 2014, the Bremen District Court determined that J.A. was not the father. As a result, on September 7, 2015, the Bremen City Office declared that the plaintiff was not in possession of German citizenship.
Denial by the Immigration Office and Subsequent Lawsuit by the Parents
On October 8, 2015, the plaintiff filed a lawsuit against this decision, requesting that the Bremen City Office be obliged to establish that he was a German citizen.
The Bremen Administrative Court dismissed the lawsuit and declared the decision of September 7, 2015, to be lawful.
In response, the plaintiff appealed, seeking to overturn both the ruling of the Bremen Administrative Court and the decision of September 7, 2015, and requested that the defendant be obliged to determine the plaintiff’s German citizenship.
Judgment of the Higher Administrative Court of Bremen:
The plaintiff appealed against the dismissive judgment of the Administrative Court.
The plaintiff’s admissible appeal was successful. He was entitled to German citizenship against the defendant.
The Bremen Higher Administrative Court first argued that the loss of the plaintiff’s German citizenship under Article 16 (1) sentence 2 of the Basic Law requires a legal basis, subject to strict requirements.
Article 16 (1) sentence 1 of the Basic Law states: “German citizenship may not be revoked.” However, this did not exclude the possibility of losing the plaintiff’s German citizenship from the outset, as the loss was not a revocation but a deprivation of citizenship. A deprivation of German citizenship is defined as any loss that impairs citizenship’s function as a reliable basis for equal membership in the national community (cf. Federal Constitutional Court, Decision of 17.07.2019 – 2 BvR 1327/18, juris para. 23 with further references). Such impairment does not occur when citizenship is lost due to non-governmental contestation of paternity, at least not when the affected child is at an age when children typically have not yet developed their own trust in the permanence of their citizenship (cf. Federal Constitutional Court, ibid., juris para. 24). When J.A.’s paternity was contested, the plaintiff had not yet completed his first year of life, and such trust in the permanence of his citizenship did not exist at that time.
Citizenship Loss Only Permitted If Statelessness Is Avoided
According to Article 16 (1) sentence 2 of the Basic Law, loss of citizenship against the will of the affected person may only occur based on a law and only if the person does not become stateless as a result. The legal reservation to act only with a law is not solely fulfilled by the legislator’s creation of a provision for loss; further requirements regarding the clarity of the provision must also be observed. Article 16 (1) sentence 2 of the Basic Law mandates that the loss of citizenship must be regulated so clearly that the function of citizenship as a reliable basis for equal membership in the national community is not impaired (Federal Constitutional Court, Decision of 17.12.2013 – 1 BvL 6/10, juris para. 81; Decision of 17.07.2019 – 2 BvR 1327/18, juris para. 33). The reliability of the citizenship status includes the predictability of loss, providing sufficient legal security and clarity in the area of citizenship loss regulations (Federal Constitutional Court, Decision of 17.07.2019 – 2 BvR 1327/18, juris para. 23; Judgment of 24.05.2006 – 2 BvR 669/04, juris para. 50; Higher Administrative Court of Lower Saxony, Decision of 12.09.2019 – 8 ME 66/19, juris para. 48). The requirements for the clarity of the loss provision vary based on the degree of trust in the permanence of citizenship (cf. Federal Constitutional Court, Judgment of 24.05.2006 – 2 BvR 669/04, juris paras. 88 f.).
The legal reservation is therefore only satisfied in the case of a citizenship loss due to the contestation of paternity when the legal consequence of the loss of citizenship is clearly stated in the wording of a statutory norm. This applies regardless of whether the contestation of paternity is conducted by an authority or by the child’s mother or father.
The legal requirements for a statutory regulation concerning the loss of German citizenship following the contestation of paternity have repeatedly been the subject of Federal Constitutional Court decisions. Regarding the loss of German citizenship due to an official contestation of paternity, the Federal Constitutional Court had decided that the legal reservation places “strict requirements” on the regulation of citizenship. A merely implicit regulation, which only implies that the official contestation leads to a loss of citizenship, does not meet these requirements (Federal Constitutional Court, Decision of 17.12.2013 – 1 BvL 6/10, juris para. 83). In a subsequent decision, also concerning the definition of the requirements for the legal reservation (but this time for a non-official contestation of paternity), the Federal Constitutional Court explicitly referred to the “strict requirements” of the legal reservation developed for the loss of citizenship due to an official contestation (Federal Constitutional Court, Decision of 17.07.2019 – 2 BvR 1327/18, juris para. 33 referring to Federal Constitutional Court, Decision of 17.12.2013 – 1 BvL 6/10, juris para. 83 = BVerfGE 135, 48 ). These strict requirements do not necessarily exclude a loss of German citizenship of the child as a result of a paternity contestation but require the legislator to create a clear regulation that the contestation of paternity can indeed lead to a loss of citizenship. According to the case law of the Federal Constitutional Court, no lower requirements should be placed on a legal provision regarding the loss of German citizenship due to a non-official contestation of paternity than on a provision regarding the loss through an official contestation.
The Child Cannot Influence the Deprivation of Citizenship
It could be argued that the Federal Constitutional Court views the loss of citizenship due to an official contestation of paternity as an unconstitutional deprivation of citizenship because the affected child cannot influence the deprivation (Federal Constitutional Court, Decision of 17.12.2013 – 1 BvL 6/10, juris paras. 31, 50 f.). This applies only in cases where the acknowledgment of paternity does not aim to circumvent legal residency requirements. From these explanations of the Federal Constitutional Court, it can be inferred that a successful official contestation often constitutes a particularly severe and absolutely prohibited deprivation of citizenship under Article 16 (1) sentence 1 of the Basic Law because neither the child nor the parents have any influence. However, from these explanations, it cannot be inferred that the legal reservation under Article 16 (1) sentence 2 of the Basic Law imposes lower requirements on the legal provision of a loss event due to a non-official paternity contestation. Instead, the strict requirements of the legal reservation derived by the Federal Constitutional Court apply explicitly to the constitutional requirements that Article 16 (1) sentence 2 of the Basic Law imposes on any loss of citizenship due to the contestation of paternity.
The same requirements apply to the legal reservation for the loss of citizenship for both official and non-official paternity contestations, as these are essentially equally intense intrusions into Article 16 (1) sentence 2 of the Basic Law (cf. Federal Constitutional Court, Decision of 17.12.2013 – 1 BvL 6/10, juris para. 85; Decision of 17.07.2019 – 2 BvR 1327/18, juris para. 34). The consequence in both cases, namely the loss of German citizenship, is equally severe for the affected child (cf. Federal Constitutional Court, Decision of 17.12.2013 – 1 BvL 6/10, juris para. 85; Decision of 17.07.2019 – 2 BvR 1327/18, juris para. 34). Just because the official contestation aims to eliminate the child’s citizenship (Federal Administrative Court, Judgment of 19.04.2018 – 1 C 1/17, juris para. 36) does not mean that there is a significant distinction regarding the intensity of the intrusion. For the intensity of the intrusion into Article 16 (1) sentence 2 of the Basic Law, the scope of the reduction of the protected area is primarily relevant. However, the burden placed on the plaintiff by the loss of citizenship due to the contesting party does not weigh more heavily.
The comparability of the intrusions is also supported by the fact that the minor child is equally worthy of protection in both cases. The child was not responsible for who was recognized as its father. Nor did it have any personal influence over the contestation of a paternity established under § 1592 No. 1 or No. 2 of the German Civil Code (BGB). The different degrees of influence the parents may have on the loss of citizenship have no significant impact on the child’s protection because they primarily concern distinguishing between the deprivation and the loss of citizenship (cf. Federal Constitutional Court, Decision of 17.12.2013 – 1 BvL 6/10, juris paras. 26 ff., 80; Decision of 17.07.2019 – 2 BvR 1327/18, juris para. 28; Federal Administrative Court, Judgment of 19.04.2018 – 1 C 1/17, juris para. 24).
Just because the official contestation intrudes more intensively into the fundamental rights of the parents does not mean that the official and non-official contestation cannot be compared; for regarding the intrusion into Article 16 (1) sentence 2 of the Basic Law, the loss of citizenship is equally intense for the child. The official contestation, initiated by the state, intrudes into the private family law relationships by retroactively terminating the legal paternity against the family members‘ will (Federal Administrative Court, Judgment of 19.04.2018 – 1 C 1/17, juris para. 36). This also intrudes into the existence of parenthood protected by Article 6 (2) sentence 1 of the Basic Law (cf. Federal Constitutional Court, Decision of 17.12.2013 – 1 BvL 6/10, juris para. 94) and the child’s right to the assurance of parental care and upbringing protected by Article 2 (1) in conjunction with Article 6 (2) sentence 1 of the Basic Law (cf. Federal Constitutional Court, ibid., juris para. 102).
Although the non-official contestation can also result in an intrusion into these fundamental rights (cf. Federal Constitutional Court, Decision of 04.12.1974 – 1 BvL 14/73, juris), since this intrusion is initiated by someone who also possesses fundamental rights, it is less intense than the purely state-driven official contestation. Due to this more intense intrusion into the fundamental rights, the official contestation must therefore meet higher requirements for justifying such an intrusion. However, this does not result in higher requirements for the legal reservation regarding intrusions into Article 16 (1) sentence 2 of the Basic Law. These requirements depend solely on the intensity of the intrusion into Article 16 (1) sentence 2 of the Basic Law because compliance with the legal reservation is a prerequisite for its justification. The intensity of the intrusion is not increased by the fact that the official contestation also intrudes into other fundamental rights.
A legal basis that meets these constitutional requirements does not exist for the loss of citizenship due to the determination of non-existence of paternity under § 1599 BGB.
Such a legal basis could not be derived from § 1599 (1) BGB, § 4 (1) sentence 1 StAG, or § 17 (2) and (3) sentence 1 variant 3 StAG as individual provisions or from the interaction of these provisions (similar conclusion: VG Lüneburg, Judgment of 28.11.2019 – 6 A 112/18, juris para. 29; different view: OVG Lower Saxony, Decision of 12.09.2019 – 8 ME 66/19, juris paras. 46 ff.).
§ Section 1599 para. 1 BGB regulates the conditions under which the fictitious effect of section 1592 no. 1 BGB does not apply and therefore the paternity of the man who was married to the child's mother at the time of the birth is cancelled retroactively. However, the wording of the provision contains neither an explicit regulation nor any indication of a further regulation as to which legal consequences result from the retroactive cancellation of paternity.
Section 4 (1) sentence 1 StAG did not apply either, as this is not a regulation on the loss of citizenship, but on the acquisition of citizenship.
The inserted provisions of Section 17 (2) and (3) StAG also do not constitute a legal basis for the loss of citizenship. § Section 17 para. 2 StAG stipulates that the loss of citizenship pursuant to para. 1 no. 7 does not affect the German citizenship of third parties acquired by operation of law, provided they have reached the age of five. According to § 17 Para. 3 Sentence 1 StAG, Para. 2 applies accordingly to decisions under other laws that would result in the retroactive loss of the German citizenship of third parties, in particular in the case of the withdrawal of a settlement permit under § 51 Para. 1 No. 3 of the Residence Act, the withdrawal of a certificate under § 15 of the Federal Expellees Act and the determination of the non-existence of paternity under § 1599 of the Civil Code.
The legal proviso of Art. 16 para. 1 sentence 2 GG is thus still not satisfied because it is not expressly regulated by law that citizenship is lost as a result of the determination that paternity does not exist (see also OVG Nds., decision of 12 September 2019 - 8 ME 66/19, juris para. 49). § Section 17 (2) and (3) StAG merely implies that the contestation of paternity leads to the loss of citizenship, and thus only indirectly regulates the loss of citizenship (BVerfG, decision of 17 December 2013 - 1 BvL 6/10, juris para. 83; BVerwG, judgement of 19 April 2018 - 1 Cf. 19.04.2018 - 1 C 1/17, juris para. 34; OVG S-H, decision of 11.05.2016 - 4 O 12/16, juris para. 14); this provision therefore also presupposes a loss provided for elsewhere by law without regulating it itself (BVerwG, decision of 19.04.2018 - 1 C 1/17, juris para. 34).
The wording of Section 17 (3) sentence 1 StAG ("Paragraph 2 applies accordingly") suggests that the regulatory purpose of the provision is limited to applying the age limit for the loss of citizenship to losses of German citizenship resulting from other provisions. The explicit reference to the non-existence of paternity in accordance with Section 1599 BGB that follows in the legal text is also not formulated in such a way that it can be assumed that the legal consequence of the loss of nationality is standardised. Rather, the introduction "in particular in the case of" suggests that some of the circumstances covered by Section 17 para. 3 sentence 1 StAG are to be named by way of clarification. According to the wording, Section 17 para. 3 sentence 1 StAG therefore only has the effect of protecting citizenship (see VG Lüneburg, judgement of 28 November 2019 - 6 A 112/18, juris para. 28); it makes the loss of citizenship following a non-official challenge to paternity dependent on the age limit under Section 17 para. 2 StAG being met.
This interpretation is not inconsistent with the legislative history of Section 17 (2) and (3) StAG. At the time of the legislative procedure concluded in 2009, case law - including that of the Federal Constitutional Court - assumed undisputedly, with various justifications, that the cessation of citizenship occurs as a consequence of a legally binding determination of the non-existence of paternity conferring citizenship that is not initiated by the authorities and that this cessation does not raise any fundamental constitutional concerns (see BVerfG, decision of 24 October 2006 - 2 BvR 696/04, juris para. 21 with further references). Only the decision of the Federal Constitutional Court on the official challenge of paternity (decision of 17 December 2013 - 1 BvL 6/10) has given rise to doubts about this legal assessment.
Nor can it be inferred from the meaning and purpose of the addition of paragraphs 2 and 3 to Section 17 StAG that this was intended to constitutively order the loss of citizenship. The addition was intended to regulate the loss of citizenship with legal certainty (see Bundestag-Drs. 16/10528, p. 6 f.). Admittedly, taking into account the decisions of the Federal Constitutional Court that have been handed down in the meantime, the realisation of this objective would require an explicit regulation of the loss of citizenship. However, the meaning and purpose of the provision must also take into account the specific need for regulation that the legislator has assumed. According to the explanatory memorandum to the law, the need for regulation was derived from two decisions of the Federal Constitutional Court (judgement of 24 May 2006 - 2 BvR 669/04 and decision of 24 October 2006 - 2 BvR 696/04). With regard to the retroactive loss of a child's German citizenship as a result of the successful contestation of paternity, the relevant decision of the Federal Constitutional Court - which the legislator correctly assumed (cf. Bundestag-Drs. 16/10528, p. 7) - only the necessity of limiting the loss of citizenship can be inferred, but not a need for its constitutive regulation (see BVerfG, decision of 24 October 2006 - 2 BvR 696/04, juris para. 19 ff.). Consequently, the purpose of the law is limited to this need for regulation.
An explicit statutory regulation of the loss of nationality also does not result from the interaction of § 1599 BGB with § 4 Para. 1 Sentence 1 StAG and § 17 Para. 2 and Para. 3 Sentence 1 Var. 3 StAG. An explicit provision requires a clear designation of the legal consequence of the loss of nationality if paternity is contested. It is generally accepted that the legal provisions cited (sole derivation of German citizenship from the original father) or expressly stipulated by law (age limit of five years) contain necessary conditions for the loss of citizenship. However, the legal consequence of the loss of nationality cannot be clearly inferred from either the individual provisions or their interaction. [...]
Higher Administrative Court Bremen
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