There are various ways to acquire German citizenship. In addition to birth and descent from at least one parent with German citizenship, there is also naturalization or adoption by a German citizen. A little-known option for acquiring German citizenship is the acquisition by declaration.
In this respect, the provision of Section 5 StAG covers some groups of people who were denied German citizenship in the past due to discrimination, although they should have been granted German citizenship if the citizenship law had been applied without discrimination.
In this article, Björn Maibaum, lawyer and specialist lawyer for migration law, explains what the acquisition of a declaration means, which groups of people are eligible for the acquisition of a declaration and which requirements must be met.
What does “acquisition by declaration” mean?
Acquisition of citizenship by declaration (Section 5 StAG): For certain groups that have been disadvantaged in the past due to gender-discriminatory regulations, it is possible to acquire German citizenship by declaration. This applies, for example, to persons whose German ancestors have lost their citizenship. This is often due to previous discrimination in nationality law.
The group of persons named in § 5 StAG acquires German citizenship directly by submitting a declaration of intent to become a German citizen. However, this requires a clear declaration of intent, which must be submitted to the competent authority. There are no particular bureaucratic hurdles, but the declaration must be formulated in a legally secure manner. Unlike the regular naturalization procedure, no declaration of loyalty or proof of integration is required.
Declaration and fulfillment of the requirements are sufficient for acquisition
The acquisition of citizenship by declaration is not bound to any form. The receipt of the declaration of intent by the competent authority already leads to the acquisition of German citizenship. However, the requirements of § 5 para. 1 to 3 StAG must be fulfilled and there must be no grounds for exclusion.
Even if the examination of the requirements by the competent authority may take some time, German citizenship is granted retroactively upon receipt of the declaration by the competent authority. The award is made in the form of a certificate. However, the certificate is not a legal requirement for acquiring German citizenship.
No automatic acquisition of German citizenship
In § 5 StAG, the legislator has decided against the automatic conferral of German citizenship “by operation of law” to the group of people concerned. Automatic conferral could otherwise lead to the persons concerned – especially those living abroad – being granted German citizenship without their knowledge or against their will.
Such a compulsory conferral could lead to problems of dual nationality in international relations or to the loss of the previous nationality if the nationality law of the state of the previous nationality does not provide for dual nationality. In particular, descendants of victims of Nazi persecution, insofar as Section 5 StAG applies to them, who may have no interest in German citizenship, would otherwise involuntarily become German citizens.
However, this also means that German citizenship can only be acquired in accordance with § 5 StAG if the declaration that the person wishes to become a German citizen is actively and purposefully made to the competent authority.
For whom is it possible to acquire citizenship by declaration?
The group of persons entitled to benefits pursuant to § 5 para. 1 sentence 1 StAG are above all persons who, due to a gender-specific disadvantage, could not acquire German citizenship according to the principle of descent despite being descended from a German ancestor.
While today it is sufficient for children to become German citizens (regulation applies to births from January 1, 1975) if at least one parent is a German citizen themselves, this used to be different in some cases, depending on the regulation and time period, or German parents themselves lost their German citizenship if they married a citizen of another country.
Case groups of § 5 para. 1 StAG
The reason for the possible acquisition of German citizenship by declaration in accordance with § 5 StAG is therefore the non-acquisition of German citizenship despite being descended from a German parent.
§ Section 5 (1) sentence 1 no. 1 StAG: This case group concerns children of whom one parent had German citizenship at the time of their birth and yet did not acquire German citizenship by birth. This gender-discriminatory exclusion from acquiring citizenship by birth is incompatible with Art. 3 para. 2 GG is not compatible.
Background: Anyone born before December 31, 1974 as a legitimate child could only receive German citizenship from a German father, but not from a German mother. Married children of a German mother who were born between 01.01.1963 and 31.12.1974 only received German citizenship during this period if they would otherwise have become stateless.
Children born out of wedlock to a German mother have received German citizenship through their mother since 1914. However, until 01.07.1993 this did not apply to children born out of wedlock to a German father.
Entitled persons in this case group: Entitled persons in the case group according to No. 1 include persons born before January 1, 1975 as a legitimate child of a German mother and a foreign father, as well as persons born before July 1, 1993 as an illegitimate child of a German father and a foreign mother.
§ Section 5 (1) sentence 1 no. 2 StAG: This case group applies to children born in wedlock whose mother lost her German citizenship through marriage to a foreigner and the child was therefore unable to acquire German citizenship from the mother.
Background: According to § 17 No. 6 RuStAG in the version up to 1953, a mother with German citizenship lost her previous citizenship if she married a foreign husband. In contrast, men with German citizenship did not lose their German citizenship if they married a foreign wife. However, this regulation is gender discriminatory. Without the old provision of § 17 No. 6 RuStAG, German mothers would not have lost their citizenship and could have passed it on to their legitimate children like German men.
Entitled persons in this case group: This case group applies to children born in wedlock to a former German mother and a foreign father who were born
§ Section 5 (1) sentence 1 no. 3 StAG: This case group applies to children born out of wedlock to a German mother and a foreign father. The child’s German citizenship must have been lost after birth.
Background: In principle, illegitimate children of a German mother would have become German citizens since 1914. However, if the German mother had married the foreign father after the birth of the child, the child lost its German citizenship in accordance with § 17 No. 5 RuStAG in the version in force at the time upon marriage and recognition of paternity by the foreign father. Legitimization in this context means the marriage of the parents with recognition of the child by the foreign father.
Entitled persons in this case group: This case group applies to illegitimate children of a German mother and a foreign father who were born
§ Section 5 (1) sentence 1 no. 4 StAG: This case group includes all descendants of Germans who did not obtain German citizenship for the reasons mentioned above. If the rules of descent had been applied in a gender-neutral manner, the persons in the three groups of cases mentioned (No. 1 to No. 3) would have acquired German citizenship by descent. All legitimate and illegitimate children who are related to the person concerned in a direct line (children, grandchildren, great-grandchildren, etc.) fall under case group no. 4.
Birth necessary after entry into force of the Basic Law
Since the provision on equal treatment of women and men in Art. 3 para. 2 GG has only existed since the Basic Law came into force on 24.05.1949, the acquisition of citizenship by declaration in accordance with § 5 StAG is only possible for persons and their descendants if the first discriminated person was born after 24.05.1949. This results in the following time periods for the birth of a child who was unable to acquire German citizenship due to the principle of descent or who lost it again:
- § 5 para. 1 sentence 1 no. 1 StAG: Birth between 24.05.1949 and 31.12.1974 (legitimate children of a German mother) or birth between 24.05.1949 and 30.06.1993 (illegitimate children of a German father).
- § 5 para. 1 sentence 1 no. 2 StAG: Birth on or after 24.05.1949
- § 5 para. 1 sentence 1 no. 3 StAG: Birth on or after 24.05.1949
What are the requirements for acquisition by declaration?
The prerequisite for the declaration on the acquisition of German citizenship is that the beneficiaries are entitled to a residence permit in accordance with § 5 Para. 1 sentence 1 StAG are capable of acting or legally represented. Capacity to act means that minors who have reached the age of 16 can also make an effective declaration. Otherwise, the parents are responsible as legal representatives.
Reasons for exclusion
In § 5 para. 1 sentence 1 StAG also lists various grounds for exclusion that prevent the acquisition of a declaration. These are among others:
- criminal conviction for one or more intentional criminal offenses to a prison sentence or juvenile sentence of more than two years
- Conviction with order for placement in preventive detention
- Existence of a reason for exclusion according to § 11 StAG (e.g. aspirations against the free democratic basic order).
Excluded group of persons
If according to § 5 para. 1 sentence 1 StAG in principle the entitlement to acquire a declaration, § 5 para. 2 StAG stipulates which persons are excluded from this. This is the case if the person has given up, lost or renounced German citizenship after birth.
The same applies to persons who have given up, lost or renounced their German citizenship as a result of their mother’s marriage to a foreign father and adoption as a child (legitimation, see Section 5 (1) sentence 1 no. 3 StAG).
Descendants are then also excluded from acquiring a declaration.
What is the deadline for the acquisition of the declaration?
The acquisition of declarations in Section 5 StAG was newly regulated by the Fourth Act Amending the Citizenship Act (4th StAGÄndG) and the acquisition of declarations was extended by several groups of cases. The amendments came into force on 20.08.2021. According to § 5 Abs. 3 StAG, the beneficiaries have a total of 10 years after the amendment comes into force to submit a declaration of acquisition.
The possibility of acquiring a declaration therefore ends on August 19, 2031. As this is a cut-off period, the deadline cannot be extended. Only if the deadline was missed through no fault of your own can you apply for reinstatement in accordance with Section 32 VwVfG.
Entitlement to citizenship according to § 5 StAG? We check your chances and support you in acquiring a declaration.
We are there for you. Contact us by e-mail: kontakt@ra-maibaum.de or by telephone on: +49 (0) 221 598 13 594
Conclusion
- Basis for the acquisition of citizenship by
declaration : The acquisition of German citizenship by declaration (§ 5 StAG) is a special regulation for persons who were denied citizenship due to gender-discriminatory regulations at the time. A declaration of intent made to the competent authority is sufficient for this purpose. - Eligible persons: Eligible persons are those who have not received German citizenship despite being descended from a German parent. These are in particular
- Married children of a German mother and a foreign father born before 01.01.1975.
- Children born out of wedlock to a German father and a foreign mother before 01.07.1993.
- Persons whose German mother lost her citizenship through marriage to a foreigner before 01.04.1953.
- Persons who were born before 01.04.1953 as an illegitimate child of a German mother and who have lost their German citizenship through the marriage of the mother and the adoption of the child by a foreign father (legitimation).
- Descendants of these groups of persons (children, grandchildren, great-grandchildren).
- Verfahren und Voraussetzungen: Die Staatsangehörigkeit wird mit Abgabe und Entgegennahme der Erklärung erworben, wenn die Voraussetzungen erfüllt sind.
- Residency in Germany is not required, so the application can also be submitted from abroad.
- Proof of loyalty and a naturalization test are not required. However, efforts against the free democratic basic order can lead to exclusion from the declaration.
- The declaration can be made in writing.
- After checking the requirements, the authority issues a certificate as proof. The certificate is not a prerequisite for acquiring German citizenship.
- Reasons for exclusion from acquisition by declaration: Persons are excluded from acquisition by declaration if they
- Have voluntarily given up or lost German citizenship after birth.
- have been convicted of serious criminal offenses (e.g. imprisonment of more than two years).
- are considered a danger to the free democratic basic order according to § 11 StAG.
- Deadline for acquiring German citizenship by
declaration : The possibility of acquiring German citizenship by declaration ends on 19.08.2031. As this is a cut-off period, subsequent applications are not possible unless the deadline was missed through no fault of the applicant. - Differences to the regular naturalization procedure
- No longer stay in Germany required
- No requirements for language skills or financial independence.
- Acquisition takes place directly by declaration, without any further discretion on the part of the authorities.
- Multiple nationality is permitted under German law; the previous nationality does not have to be given up.
