Bavarian Administrative Court, 23.01.2017, Case No.: 5 B 16.1007
Bayrischer Verwaltungsgerichtshof, 23.01.2017, Az.: 5 B 16.1007
According to Section 10 (1) StAG, a foreigner who has had their habitual residence in Germany for eight years is entitled to naturalization upon application, provided that the requirements listed in numbers 1 to 7 are met.
It should be noted that the requirements set out in Section 10 StAG must all be cumulatively met. Only when all criteria are fulfilled does the applicant have a claim to naturalization into the German state union. Regarding the requirement of a clean criminal record, the disregard threshold of Section 12a (1) sentence 1 StAG must be taken into account. According to this provision, minor offenses, including fines up to 90 daily rates under number 2, may be disregarded during the naturalization process. Similarly, measures for rehabilitation and security can also be disregarded.
The plaintiff seeks naturalization into the German states federation through the decision below. The underlying issue of the case is the question of whether minor convictions should be considered within the scope of the authority’s discretion.
Case Facts
The plaintiff, a Brazilian national, applied for naturalization in Germany. He came to Germany in 2002 to study, worked as a dancer, and ran a café. In 2012, the plaintiff was convicted of negligent drunk driving, which he failed to disclose in his naturalization applications. This led to another conviction for fraudulently obtaining naturalization.
Rejection of the Naturalization Application by the Authority
The defendant rejected the naturalization application, citing Section 10 (1) sentence 1 No. 5 StAG. Although the convictions were considered minor offenses, the authority deemed the measure of rehabilitation and security decisive. The plaintiff then filed a lawsuit against this decision.
Judicial Proceedings in the Administrative Court
The Administrative Court dismissed the lawsuit, supporting the defendant’s discretionary decision. It argued that the measure of rehabilitation and security must be considered in the naturalization process, even if the criminal convictions were minor.
Appeal Decision by the Bavarian Administrative Court
The Bavarian Administrative Court ruled in favor of the plaintiff and overturned the Administrative Court’s decision. The court found that the plaintiff’s convictions must be disregarded due to their minor nature under Section 12a (1) StAG and that the measure of rehabilitation and security is not relevant in the naturalization process.
Distinction Between Punishment and Measures in Naturalization Law
The court emphasized that measures for rehabilitation and security imposed in addition to a criminal conviction should not influence the naturalization decision. Only measures imposed due to incapacity should be relevant under Section 10 (1) sentence 1 No. 5 StAG.
Conclusion and Judgment
The court ruled that the plaintiff is entitled to naturalization, as the measures imposed against him should not be considered. As a result, the Administrative Court’s decision was overturned, and the plaintiff was granted naturalization.
The appeal was therefore justified, and the plaintiff has a claim to naturalization.
Source: Administrative Court of Hannover
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