There are various ways to acquire German citizenship. In addition to birth and descent from at least one parent with German citizenship, other options include naturalization or adoption by a German citizen. A little-known way of acquiring German citizenship is 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.
Björn Maibaum, lawyer and specialist lawyer for migration law, explains in this article 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.
Acquisition of citizenship by declaration (Section 5 StAG): For certain groups that have been disadvantaged in the past due to gender-discriminatory regulations, there is the possibility of acquiring German citizenship by declaration. This applies, for example, to people whose German ancestors lost their citizenship. This is often due to previous discrimination in nationality law.
The group of people named in Section 5 StAG acquire 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 in the regular naturalization procedure, no declaration of loyalty or proof of integration is required.
The acquisition of citizenship by declaration is not bound to any form. German citizenship is acquired as soon as the declaration of intent is received by the competent authority. However, the requirements of Section 5 (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 conferral takes place by means of a certificate. However, the certificate is not a legal requirement for the acquisition of German citizenship.
In Section 5 StAG, the legislator has decided against the automatic conferral of German citizenship "by operation of law" to the group of people concerned. An automatic conferral could otherwise lead to the persons concerned - especially those living abroad - receiving 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.
The group of persons entitled under Section 5 (1) sentence 1 StAG are primarily persons who, due to a gender-specific disadvantage, were unable to acquire German citizenship in accordance with 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.
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 group of cases concerns children one of whose parents 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 Article 3 (2) of the Basic Law.
Background: Children born in wedlock before December 31, 1974 could only receive German citizenship from a German father, but not from a German mother. Married children born to a German mother 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, this did not apply to illegitimate children of a German father until 01.07.1993.
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 obtain 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 before April 1, 1953. The mother's nationality must have been lost before the child was 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 German nationality of the child 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 before 01.04.1953. The German nationality of the child ceased to exist when the parents married and the child was recognized by the foreign father.
§ Section 5 (1) sentence 1 no. 4 StAG: This case group includes all descendants of Germans who did not acquire 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 case groups mentioned above (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 the case group of no. 4.
Since the regulation of 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 person discriminated against 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:
The prerequisite for the declaration on the acquisition of German citizenship is that the eligible persons have the capacity to act or are legally represented in accordance with Section 5 (1) sentence 1 StAG. Capacity to act means that eligible minors who have reached the age of 16 can also make an effective declaration. Otherwise, the parents are responsible as legal representatives.
Section 5 (1) sentence 1 StAG also lists various grounds for exclusion that prevent the acquisition of a declaration. These include the following:
If, according to Section 5 para. 1 sentence 1 StAG, the right to acquire a declaration exists in principle, Section 5 para. 2 StAG contains regulations on 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.
The acquisition of declarations in Section 5 StAG was newly regulated by the Fourth Act to Amend the Citizenship Act (4th StAGÄndG) and the acquisition of declarations was extended by several groups of cases. The amendments entered into force on 20.08.2021. According to Section 5 (3) StAG, eligible persons have a total of 10 years after the amendment comes into force to submit a declaration of acquisition.
The possibility of acquiring the declaration therefore ends on 19.08.2031. As this is a cut-off period, the deadline cannot be extended. Only if the deadline was missed through no fault of one's own can an application be made for reinstatement in accordance with Section 32 VwVfG.
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