Aktualisiert am:
Federal Administrative Court, 05.06.2014, Case No.: BVerwG 10 C 4.14
One of the basic prerequisites for acquiring German citizenship is the renunciation of the applicant’s previous (foreign) nationality. However, obtaining a release from the previous nationality is often associated with difficulties or can take a long time.
Until the applicant is released from their previous nationality, they can apply for a written naturalization assurance from the naturalization authority in Germany according to § 38 of the Administrative Procedure Act (VwVfG). This assurance promises naturalization once the applicant is released from their former citizenship.
However, the issuance of such an assurance requires that the applicant meets all other prerequisites for naturalization. These prerequisites include not having a significant criminal record.
In the above-mentioned case, the Federal Administrative Court had to decide whether a Turkish national living in Germany could be denied naturalization due to two criminal convictions, even though the juvenile sentence had been expunged under § 100 of the Juvenile Court Act (JGG).
Case Background:
The plaintiff, born in 1983 in Turkey, is a Turkish national. He has lived in Germany since 1996 and is the father of a child born in 2008 who holds German citizenship. In 1997, the plaintiff was first granted a residence permit, and since 2009, he has held a permanent residence permit.
In June 2010, the plaintiff applied for naturalization with the defendant district. To assess the naturalization prerequisites, the defendant requested information from the Federal Central Register.
Plaintiff’s Criminal Conviction:
The Federal Central Register revealed that the plaintiff had been issued a penalty order imposing a fine of 60 daily rates. Additionally, the plaintiff had been sentenced on November 28, 2002, to 10 months of juvenile detention, which was suspended on probation. After the probation period ended, the sentence was pardoned in 2005, and the criminal stigma was expunged according to § 100 JGG.
Based on these convictions, the defendant denied the plaintiff’s application for a naturalization assurance.
Legal Proceedings:
After the naturalization application was rejected, the plaintiff sued the naturalization authority. The Administrative Court initially dismissed the claim for a temporary naturalization assurance, and the appeal to the Higher Administrative Court was also rejected on August 22, 2013.
The courts held that the combined penalties exceeded the threshold for negligible criminal offenses. The convictions were not subject to a non-disclosure rule under § 51 of the Federal Central Register Act (BZRG), and the expiration of the record would not occur until 10 years after the last conviction. The expungement of the criminal stigma did not equate to a deletion from the register, and § 41 (3) Sentence 1 BZRG did not create a non-disclosure rule equivalent to § 51 BZRG.
Judgment of the Federal Administrative Court:
The plaintiff appealed to the Federal Administrative Court, which also ruled against him, dismissing the claim. The court held that the plaintiff was not entitled to the requested assurance because, after renouncing his Turkish citizenship, he did not meet the requirements for either entitlement naturalization under § 10 of the Nationality Act (StAG) or discretionary naturalization under § 8 StAG.
The plaintiff’s convictions constituted a material obstacle to naturalization and were not subject to the non-disclosure rule under § 51 BZRG.
Expungement Only Prevents Disclosure to Authorities:
The expungement only meant that the conviction could no longer be disclosed to the naturalization authority by the register authority. However, a material non-disclosure rule would only apply after the conviction was deleted from the register, which in this case would not occur until 2017, provided no further offenses were committed.
Additionally, discretionary naturalization was ruled out due to the failure to meet the requirement of a clean criminal record.
Source: Federal Administrative Court
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