Immigration Law: A right to naturalization may exist despite the applicant’s reliance on social assistance and insufficient German language skills.

Administrative Court Stuttgart, December 2, 2011, Case No.: 11 K 839/11

German citizenship can be acquired through birth, or due to a statutory entitlement, and also through naturalization.

The essential legal basis for the acquisition and loss of German citizenship is contained in the Nationality Act (StAG) in its current version.

The Nationality Act fundamentally distinguishes between naturalization as a right (§ 10 StAG) and discretionary naturalization (§§ 8, 9 StAG):

In the case of naturalization as a right, there is an entitlement if the applicant has legally resided in Germany for eight years,

 

• • • acknowledges the liberal democratic order of the Basic Law for the Federal Republic of Germany,
    • Possess a permanent right of residence or a residence permit at the time of naturalization,
    • Can support themselves and their dependents without relying on benefits under SGB II or XII, or are not at fault for requiring such benefits,
    • Have not been convicted of a criminal offense,
    • Have sufficient German language skills, and
    • Possess knowledge of the legal and social order and living conditions in Germany.

The requirements for discretionary naturalization under § 8 StAG largely correspond to those of naturalization as a right.

However, discretionary naturalization also requires the establishment of a public interest in the naturalization.

Spouses or civil partners of German nationals should be naturalized under § 9 StAG if they meet the requirements of § 8 and can prove legal and regular residence in Germany for three years, and if the marital or civil partnership with the German national has existed for at least two years within the country (not a sham marriage).

Otherwise, the general naturalization requirements also apply here.

The Administrative Court Stuttgart had to decide in the above-mentioned ruling whether an applicant for naturalization has a right to naturalization even if they do not meet the requirements for sufficient knowledge of the German language and the legal and social order in Germany as stipulated by § 10 para. 1 no. 6 and no. 7 StAG.

Facts of the Case:

The plaintiff, a Turkish national, was born in 1949 and entered the Federal Republic of Germany in 1991. Due to health problems, she was under legal guardianship.

After arriving in Germany, she applied for asylum and was recognized as a person entitled to asylum under § 51 para. 1 of the Aliens Act (AuslG) by the Federal Office for the Recognition of Foreign Refugees in 1994. Since 1994, the plaintiff held an unlimited residence permit.

In 2006, the Federal Office for Migration and Refugees revoked the 1994 recognition of asylum and the determination that the requirements of § 51 para. 1 AuslG were met. At the same time, the Federal Office determined that the requirements of § 60 para. 1 of the Residence Act (AufenthG) were not met.

In 2010, a volunteer legal guardian was appointed for the plaintiff, as the guardianship court had found that the plaintiff was unable to manage her own affairs due to a mental illness and physical disability caused by a stroke and central gait disorders.

The duties of the guardian included representing the plaintiff before courts, authorities, and other public institutions.

The city health office diagnosed the plaintiff with post-stroke conditions, a reflective organic brain syndrome, central gait disorder, and primary illiteracy. Due to these severe mental and physical disabilities, the health office certified the plaintiff as absolutely incapacitated within the meaning of the German Civil Code (BGB), as significant impairments in reasoning, judgment, and insight were identified.

Application for Naturalization by the Guardian:

In early 2010, the plaintiff applied for naturalization into the German state through her guardian. An inquiry from the central register revealed no entries concerning the plaintiff. She received benefits under the Social Code Book II (SGB II) together with her husband.

In early 2011, the city of Heilbronn rejected the application for naturalization. The reason given was that due to the guardianship, it was assumed that the plaintiff was incapacitated within the meaning of § 80 AufenthG. Although the plaintiff had signed the required declaration of allegiance and loyalty for naturalization, it was doubted that she understood its content.

The city ruled that the requirements of § 10 para. 1 no. 1 StAG (declaration of allegiance and loyalty) and § 10 para. 1 no. 7 StAG (knowledge of the legal and social order) could be waived since the plaintiff was incapacitated. However, it was not possible to waive the requirement of § 10 para. 1 no. 6 StAG (sufficient knowledge of the German language), which the plaintiff did not meet. The city noted that verbal communication with the plaintiff had been very difficult in 2003 and 2007 and that the plaintiff and her husband had stated that they had not attended school in Turkey.

Court Proceedings:

In 2008, the plaintiff suffered a stroke, from which she continued to suffer aftereffects. However, she had not made any progress in learning the German language before this incident. According to medical certificates, it could be assumed that the plaintiff could not participate in a German language test. Furthermore, there was no indication that she had previously made sufficient efforts to learn German.

The plaintiff filed an objection against the decision in early 2011 after she had already filed an action for failure to act due to the long processing time. In this action, she requested that the city of Heilbronn’s decision be revoked and that the defendant be ordered to naturalize her as a German citizen. Alternatively, she requested that the defendant be ordered to grant her an assurance of naturalization.

Judgment of the Administrative Court Stuttgart:

The Administrative Court Stuttgart partially ruled in favor of the plaintiff and decided that the city of Heilbronn’s decision was unlawful and violated the plaintiff’s rights. However, the plaintiff was only entitled to the issuance of a naturalization assurance, following her alternative claim.

The court stated that the asserted naturalization claim should be assessed according to the facts and legal situation at the time of the oral hearing. The statutory requirement for naturalization under § 10 para. 1 sent. 1 no. 4 StAG was that the applicant must give up or lose their previous nationality. This was not the case for the plaintiff, as she still held Turkish citizenship.

The plaintiff had not yet renounced her Turkish citizenship. The conditions under § 12 para. 1 sent. 1 StAG, which allow the waiver of the requirement to give up the previous nationality if it is only possible under particularly difficult conditions, were also not met.

Naturalization Assurance:

The plaintiff’s alternative claim for the issuance of a naturalization assurance was, however, admissible and successful. The assurance of naturalization is a procedure borrowed from general procedural law, which is regularly applied in naturalization procedures to facilitate the renunciation of the previous nationality.

The discretion of the authority was reduced to an obligation to issue a naturalization assurance if this would enable or facilitate a claim to naturalization. The necessary prerequisites for a naturalization claim were present, apart from the requirement to renounce Turkish citizenship.

Benefits under SGB II:

Contrary to the defendant’s opinion, the conditions of § 10 para. 1 sent. 1 no. 3 StAG were also met. Although the plaintiff had been receiving benefits under SGB II for a long time, this was not her fault. At the beginning of her stay, it was unreasonable for her to take up work due to caring for her six children. Later, she could not find reasonable employment due to a lack of qualifications and her age. Additionally, the plaintiff was illiterate and did not speak German.

The defendant could not demonstrate during the oral hearing that there were employment opportunities on the German labor market before the stroke.

Lack of Language Skills:

Regarding the lack of German language skills, the plaintiff could rely on the exemption clause of § 10 para. 6 StAG, as she was no longer able to acquire the required knowledge due to her illness. The decisive factor was whether the plaintiff could meet the requirements of § 10 para. 1 sent. 1 no. 6 and 7 StAG at the time of the oral hearing due to a physical, mental, or emotional illness or disability.

Source: Administrative Court Stuttgart

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