Aliens law: Identity clarification in German citizenship and residence law

1. Introduction: The importance of identity clarification

Identity verification is a fundamental part of citizenship and residence law and is a prerequisite for the integration and legal status of migrants. It is essential for naturalisation procedures (§ 8 and § 10 of the Citizenship Act - StAG) and for the granting of residence permits (§ 5 of the Residence Act - AufenthG).

However, the persons concerned, especially recognised refugees and stateless persons, often face considerable hurdles, as proof of their identity is either missing or is not recognised by German authorities. In order to meet these challenges, the Federal Administrative Court (BVerwG) has developed a tiered verification model in several decisions, which is based on various legal principles and enables a differentiated approach.

2. The step-by-step model of the Federal Administrative Court

The step-by-step model formulated by the Federal Administrative Court in its ruling of 23 September 2020 (Ref.: 1 C 36/19) for clarifying identity in nationality law is divided into four levels:

1. Primary evidence: These include official documents such as passports, driving licences or birth certificates. According to Section 8 (1) StAG and Section 10 (1) StAG, they are considered the most reliable proof of identity.
2. Secondary evidence: This includes other official documents such as school or christening certificates, provided that the connection between the person and the name was checked when they were issued.
3. Unofficial evidence: Witness statements and private documents may be used in accordance with Section 26 (1) of the Administrative Procedure Act (VwVfG).
4. Individual details: Finally, the applicant's personal details may be taken into account if they appear plausible based on a comprehensive assessment of the submissions and the circumstances of the individual case.

This model was first described in detail in the BVerwG decision 1 C 36/19 and is based on the case law of the European Court of Human Rights (ECtHR, judgment of 11 October 2011, no. 53124/09, Genovese v. Malta), which requires a differentiated examination of proof of identity.

3. Legal basis for identity verification

The legal basis for identity verification in citizenship and residence law can be found in various standards. In nationality law, Sections 8 (1) and 10 (1) StAG stipulate that the identity of the applicant must be proven.

In residence law, Section 5 (1) No. 1a AufenthG clarifies that proof of identity is a general requirement for the issue of a residence permit. However, there are exceptions to this (Section 5 (3) AufenthG), which apply in particular to recognised refugees and persons entitled to subsidiary protection if it is unreasonable to expect them to provide proof. Additional regulations apply to specific residence permits such as training or employment toleration permits (Sections 60c and 60d AufenthG).

These legal provisions are supplemented by internal administrative guidelines, such as the application notes of the Federal Ministry of the Interior, Building and Community (circular dated 12 August 2021, ref.: M3-21002/31#8), which provide practical guidance for the assessment of evidence.

4. The practice: challenges in implementation

In practice, the application of the stage model encounters considerable problems. The successive review process often leads to lengthy procedures, as each stage has to be reviewed individually. This contradicts the principle of efficiency in administrative action (see Section 10 (1) sentence 2 VwVfG). As a result, the persons concerned are faced with legal uncertainties that hinder their social and economic integration.

This is particularly critical in the case of recognised refugees, who cannot be obliged to contact the authorities of their country of origin in accordance with Section 3 (1) of the Geneva Refugee Convention (GRC). Nevertheless, German authorities often demand additional evidence that is difficult or impossible to obtain for this group of people.

5. Special case Somalia: Special problems of Somali nationals

The situation of Somali refugees is an example of the challenges of identity verification. Due to the collapse of the Somali state in 1991, all documents issued after this date are not recognised by German authorities (see BMI general ruling of 13 October 2022, BAnz AT 25.10.2022 B4).

The issuance of proof of identity by the Somali embassy is often based on the information provided by the applicant, without recourse to registers. As a result, the German authorities consider this evidence to be insufficient.

This results in far-reaching restrictions: People of Somali origin are often unable to issue birth certificates for their children, practise security-related professions or obtain a settlement permit. Naturalisation is also made much more difficult due to the lack of recognition of documents.

Court rulings such as VG Mainz, judgement of 25 March 2022 (Ref.: 4 K 476/21), have pointed out that the humanitarian situation in Somalia and the lack of evidence of those affected must be given greater consideration when applying the graduated model.

6. Human rights and international law perspectives

The requirements for identity verification must also be considered in the light of human rights obligations. Articles 8 and 14 ECHR oblige states to avoid discriminatory and disproportionate obstacles.

For refugees, Article 34 of the Refugee Convention imposes an obligation to facilitate naturalisation and expedite procedures. The case law of the ECtHR (judgement of 11 October 2011, Genovese v. Malta) underlines that states must uphold human rights standards when checking identity in order to avoid discrimination and arbitrary delays.

However, national practice often contradicts these standards. Particularly restrictive requirements for proof of identity can push those affected into permanent legal uncertainty.

7. Affidavit as an alternative

One possible solution to simplify the identity check is the introduction of an affidavit. In several decisions (including the ruling of 1 September 2011, case reference: 5 C 27.10), the Federal Administrative Court has referred to the possibility of supplementing individual details with an affidavit.

However, there is currently no legal basis for this practice in citizenship and residence law. A statutory regulation in accordance with Section 27 (1) VwVfG could establish this instrument and considerably simplify the procedures.

8. Need for reform and recommendations for action

Identity clarification in citizenship and residence law urgently requires reforms in order to comply with human rights standards and speed up procedures. The key recommendations include

1. Codification of the stage model: A legal anchoring of the model in the Citizenship Act (StAG) and the Residence Act (AufenthG) could ensure uniformity.
2. Introduction of the affidavit: This instrument should be regulated by law and recognised as an equivalent alternative to other evidence.
3. Greater consideration of humanitarian concerns: Human rights and international law obligations should be given greater consideration, especially for recognised refugees and beneficiaries of subsidiary protection.
4. Increased efficiency: Bundling all reviews in one administrative procedure could significantly reduce the duration of the procedure.

9. Conclusion

Identity clarification is a central component of citizenship and residence law, but faces considerable challenges. The BVerwG's step-by-step model offers a sensible structure, but is made more difficult by its practical implementation. A legal codification and the introduction of alternative means of proof such as an affidavit could simplify procedures and maintain humanitarian standards.

In order to promote the integration of migrant women and avoid legal uncertainties, a reform of the existing practice is essential.

10. interesting judgements

The following decisions deal with central questions of identity clarification in citizenship and residence law. They illustrate the legal and practical challenges, particularly in the case of incomplete or unrecognised documents. These judgements show different approaches of the courts to interpreting the legal requirements for clarifying identity and harmonising them with the practical circumstances of those affected. The collection of these judgements offers valuable insights into current case law and its significance for identity verification procedures.

• Administrative Court of Bremen, Judgment of January 24, 2022, Case No.: 4 K 461/20
• Administrative Court of Mainz, Judgment of March 25, 2022, Case No.: 4 K 476/21
• Administrative Court of Munich, decision of 22 January 2024, Ref.: 5 ZB 23.2184
• Higher Administrative Court of Lower Saxony, judgement of 11.04.2024, Ref.: 13 LA 61/23
• Hamburg Administrative Court, judgement of 17.01.2024, Ref.: 19 K 1924/23
• Stuttgart Administrative Court, judgement of 15.05.2017, Ref.: 11 K 5863/16
• Higher Administrative Court of Berlin-Brandenburg, judgement of 19 March 2012, ref.: OVG 3 B 15.11
• Stuttgart Administrative Court, judgement of 14/02/2017, Ref.: 11 K 5514/16

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