Naturalization: Ongoing investigations (including foreign ones) will result in the naturalization process being paused.

In principle, naturalization is excluded if the applicant has been convicted of an unlawful act and sentenced to a fine or imprisonment, unless this is disregarded under § 12a of the Nationality Act (e.g., fines of up to 90 daily rates).

But what happens in the case of ongoing investigations, particularly foreign investigations? This was the issue addressed by the Administrative Court of Munich in the present case.

Case Background:

The plaintiff was a U.S. citizen. Born in the United States, the 62-year-old plaintiff moved to Germany in the 1960s with his parents, a German citizen and a U.S. soldier. Since then, the plaintiff has lived in Germany, except for two three-month stays in the U.S. in 1988 and 1994. He held a permanent residence permit.

After the U.S. Consulate General in Munich rejected the plaintiff’s passport application, citing an arrest warrant for fraud and failure to appear in 1994, the plaintiff applied for naturalization with the then locally responsible district office. He specifically disclosed a U.S. stay from February 1988 to May 1988 and a fraud investigation initiated in the U.S. in 1988.

The administrative procedure was repeatedly suspended, and the plaintiff attempted to provide evidence regarding the arrest warrant and the status of the investigation through lawyers. According to a document provided by the plaintiff, the proceedings against him began in 1993 based on a court transcript.

The plaintiff was under investigation in the U.S. for theft by deception.

The charge concerned theft by deception or false representation under § 3922 (a)(1) of Chapter 18 of the Pennsylvania Consolidated Statutes. The offense was classified as a third-degree felony, the lowest level of a felony. The case was considered „inactive.“ The maximum expected prison sentence for the offense was seven years. According to another U.S. notice, the statute of limitations on the charge against the plaintiff was tolled because he had left the U.S.

Due to the plaintiff’s relocation, jurisdiction was transferred to another district office in August 2019. The plaintiff was informed of a proposed denial by letters dated June 22, 2020, and August 9, 2021. After the second hearing, there was no further response from the plaintiff.

The district office ultimately denied the naturalization due to the ongoing investigation.

In its decision dated February 23, 2022, the district office denied the naturalization application under § 10(1) of the Nationality Act, stating that the requirements for entitlement to naturalization were not met. One requirement under § 10(1)(5) of the Nationality Act is that the applicant has not been convicted of an unlawful act.

The U.S. authorities had issued an arrest warrant against the plaintiff, so under § 12a(3) of the Nationality Act, the naturalization process must be suspended until the conclusion of the criminal proceedings. According to the case files, the plaintiff could not resolve the matter on his own, as he feared arrest upon entry to the U.S. The plaintiff’s lawyers were also unable to bring the proceedings to a close. According to the information provided by the plaintiff’s legal representative, U.S. law does not provide for a statute of limitations. Since the plaintiff had been unable to conclude the criminal proceedings in the U.S. within four years of filing the application, and since no statute of limitations had occurred, the conditions for naturalization were not fully met and could not be fulfilled within a foreseeable time.

The plaintiff filed a lawsuit against the rejection with the Administrative Court of Munich.

The plaintiff filed a lawsuit with the Bavarian Administrative Court of Munich, initially requesting the defendant to be obliged to grant him naturalization by overturning the decision.

He later requested:

• • • That the defendant be ordered to naturalize him as a German citizen;
    • Alternatively, that the defendant be ordered to grant him an assurance of naturalization;
    • Further alternatively, that the defendant be ordered to reconsider his application for naturalization in accordance with the court’s legal opinion.

In support of the action, the plaintiff argued that with regard to the naturalisation requirements, only Section 10 (1) No. 5 StAG was in dispute.

However, the criminal proceedings pending in the U.S. since 1994 had not resulted in a conviction within the meaning of the law. The suspension rule in § 12a(3) of the Nationality Act was not applicable because the investigation had ended with the filing of charges, placing the case in the intermediate stage under German procedural law. Therefore, an investigation in the sense of the law was no longer ongoing. Additionally, the plaintiff could not be convicted in absentia in the U.S. Due to the lack of a statute of limitations after charges were filed, the statute of limitations would not expire.

Decision of the Administrative Court Munich:

The Administrative Court of Munich upheld the district office’s decision. The court ruled that the plaintiff had neither the primary claim for naturalization under § 10 of the Nationality Act nor the alternative claims for an assurance of naturalization (§ 113(5)(1) of the Administrative Court Procedure Act) or for a new, discretionary, error-free decision on his naturalization application (§ 113(5)(2) of the Administrative Court Procedure Act).The Administrative Court of Munich upheld the district office’s decision. The court ruled that the plaintiff had neither the primary claim for naturalization under § 10 of the Nationality Act nor the alternative claims for an assurance of naturalization (§ 113(5)(1) of the Administrative Court Procedure Act) or for a new, discretionary, error-free decision on his naturalization application (§ 113(5)(2) of the Administrative Court Procedure Act).

If an investigation is pending against a foreign national, the naturalization process is to be suspended.

If a foreign national applying for naturalization is under investigation for a suspected crime, the decision on naturalization must be suspended under § 12a(3)(1) of the Nationality Act until the proceedings are concluded, and in the case of a conviction, until the judgment becomes final. Based on this, the plaintiff has no claim to naturalization. Even if the negative condition under § 10(1)(5) of the Nationality Act does not apply, the application cannot be granted, and the decision on the naturalization application must be suspended under § 12a(3)(1) of the Nationality Act.

The suspension rule also applies to foreign investigations.

Contrary to the plaintiff’s view, this provision is applicable to the case. It is irrelevant whether the procedural status in the U.S. is comparable to the intermediate stage under §§ 199 ff. of the German Code of Criminal Procedure. Both the wording and the legislative intent require suspension after the investigation has formally concluded.

This interpretation is supported by the second clause of § 12a(3)(1) of the Nationality Act, which requires suspension until the finality of the conviction, extending beyond the investigation stage to include the intermediate and main trial stages.

Furthermore, § 12a(3)(1) of the Nationality Act applies to foreign criminal investigations. A prerequisite for naturalization is a clean criminal record. Consequently, under § 10(1)(5) of the Nationality Act, a conviction for an unlawful act precludes a claim to naturalization.

The conditions of § 12a(3)(1) of the Nationality Act are thus met due to the ongoing arrest warrant and related criminal proceedings in the U.S. The consequence of § 12a(3)(1) of the Nationality Act is that the decision on naturalization is suspended, even though the naturalization process itself is not.

The legislative intent behind § 12a(1) and (2) of the Nationality Act does not suggest otherwise.

Under § 12a(2) of the Nationality Act, foreign convictions are considered if (1) the act would be punishable in Germany, (2) the conviction was obtained in a fair trial, and (3) the sentence is proportionate.

Such a conviction can no longer be considered if it would be expunged under the Federal Central Criminal Register Act. For foreign convictions, § 12a(1) of the Nationality Act applies correspondingly, allowing minor convictions to be disregarded.

It is not necessary to determine whether a comparable situation exists between an existing and a pending foreign conviction, if it is reasonably certain that the behavior judged by the foreign court would not be punishable in Germany, the procedure would not meet the standards of a fair trial, or the sentence would be disproportionate or trivial, rendering the suspension pointless and allowing an exception from waiting for the conclusion of the proceedings. However, this does not apply in this case.

Given the maximum possible sentence of seven years in the proceedings against the plaintiff, it cannot be assumed that a future conviction would be disregarded under § 12a(1) and (2)(3) of the Nationality Act.

The plaintiff’s actions in the U.S. would also be punishable in Germany.

The subject of the investigation is also punishable in Germany. The alleged theft by deception under § 3922(a)(1) of Chapter 18 of the Pennsylvania Consolidated Statutes corresponds to a theft under § 242(1) of the German Criminal Code (StGB) or a fraud under § 263(1) StGB.

There is no evidence to support the plaintiff’s argument that a conviction in the U.S. would result from an unfair trial and thus be disregarded. Specifically, the fact that, according to the plaintiff’s information, the statute of limitations does not apply following the filing of charges and the plaintiff’s departure from the U.S. does not constitute an unfair trial.

The procedure in the U.S. is not considered to be in violation of the rule of law.

The assessment of the fairness of the trial cannot be based solely on the substantive and procedural requirements applicable in Germany that concretize the rule of law guaranteed by the Basic Law. Instead, the relevant standard is whether the criminal conviction, even considering differing substantive and procedural norms, meets the principles of the rule of law and proportionality as recognized in the European legal area, as enshrined in the European Convention on Human Rights (Article 6 ECHR – Right to a Fair Trial) and the EU Charter of Fundamental Rights (Article 49 CFR – Principles of Legality and Proportionality).

In principle, the regulation of statutes of limitations serves as a balance between the legitimate interests of society in certain interventions and the individual’s interest in legal certainty. This wide margin of discretion is limited only by the requirement that the legitimate interests of the affected citizens are not entirely disregarded. However, this does not mean that a criminal law that provides for the non-applicability of the statute of limitations for certain situations would be unconstitutional.

The expected sentence in the U.S. is also not considered disproportionate.

There is no indication that the expected sentence would be disproportionate. The threat of a sentence of up to seven years‘ imprisonment for an offense similar to theft or fraud (with a sentencing range of up to five years under § 242(1) StGB or § 263(1) StGB) does not suggest that the punishment would fail to reflect the gravity of the offense and the guilt involved.

Neither the passage of time since the alleged offense, the initiation of proceedings, the filing of charges, nor the issuance of an arrest warrant can justify terminating the suspension of the decision. This is not provided for by law.

Regarding the requirement of a clean criminal record for naturalization, prior convictions expunged under § 51(1) of the Federal Central Criminal Register Act are not detrimental to naturalization.

The expungement provisions of the Federal Central Criminal Register Act do not apply to ongoing investigations.

However, the expungement provisions of § 51(1) of the Federal Central Criminal Register Act do not apply to ongoing investigations. The purpose of the law is to remove the stigma of conviction and facilitate reintegration, which is not necessary without a conviction. Thus, the applicant’s clean criminal record can only be restored through the passage of time after the criminal proceedings have concluded.

There are no constitutional objections to the fact that, in the plaintiff’s case, due to the permanently suspended statute of limitations in the U.S., the issue of the plaintiff’s clean record cannot be resolved simply by the passage of time without active efforts to bring about an alternative conclusion to the criminal proceedings in the U.S.

Article 116(1) GG contains a broad legislative reservation, allowing the legislature to regulate citizenship without additional constraints through federal law under Article 73(1)(1) GG. This means that the acquisition and, subject to Article 16(1) GG, the loss of citizenship are generally governed by the Nationality Act in its current version. Apart from a prohibition of arbitrariness and the institutional guarantee of citizenship, the legislature has broad discretion to regulate access to the constitutional status of German citizenship.

The fact that the plaintiff may never be naturalized due to the indefinite statute of limitations on the investigation in the U.S., without an alternative resolution of the proceedings, does not amount to the abolition of the institution of German citizenship, nor does it constitute legislative arbitrariness. The legislative objective of suspending the naturalization claim due to foreign investigations and criminal proceedings is constitutionally sound. Naturalization establishes a special legal relationship between the state and the citizen with mutual protection and loyalty obligations and democratic participation functions.

The legislative decision to withhold this legal relationship until the applicant’s clean criminal record is clarified is reasonable and free from arbitrariness.

Since a decision on the plaintiff’s naturalization application cannot be considered at this time, there is no need to address the alternative request for an assurance of naturalization, which would be required for the renunciation of the former nationality.

As a result of § 12a(3)(1) of the Nationality Act, the decision on the naturalization application is to be suspended, so there is no obligation for the defendant to reconsider the application.