Germany eases citizenship rules, but Jewish roadblocks remain – Monash Lens

One of the more lengthy and comprehensive analyses:

Germany’s constitution contains a provision that permits citizenship to be granted to descendants of persons stripped of their German citizenship by the former Nazi regime for political, racial or religious reasons.

In practice, this provision, Article 116(2), is mostly – although not exclusively – directed at descendants of Jewish refugees from Germany. Approximately 7000 German Jews fled to Australia before World War II, due to the policies of the Nazi regime, and there are many descendants in Australia who now wish to become German citizens.

However, the German parliament has not properly implemented Article 116(2) in its citizenship law. German legislation precludes the granting of citizenship to various groups of descendants of Jewish refugees.

Many applicants have been denied citizenship on the basis that the affected family member was female, because citizenship passed only through the father at the time the German constitution was enacted.

Other applications are denied because German authorities contend that the applicant’s female ancestor willingly gave up German citizenship by marrying a non-German man after escaping Germany.

In other cases, the authorities have denied applications to the descendants of those who the authorities argue left Germany “voluntarily” during the Nazi reign and willingly relinquished their German citizenship — a position that flies in the face of historical realities. And some applicants have been denied citizenship on the basis that their parents were unmarried, or that the applicant was adopted.

We can see no rational reason why these groups of descendants are excluded for eligibility for German citizenship. As Article 116(2) of the constitution seeks to provide a form of restitution for past injustices, it’s imperative that this provision is interpreted in a generous fashion, without drawing arbitrary distinctions between descendants.

An inconsistent law

A very strong argument can be made that the law is inconsistent with the right to equality under the German constitution, not to mention Germany’s obligations of non-discrimination and the right to private and family life under the European Convention on Human Rights, to which Germany is a party.

On 30 August, the German government issued a decree that attempts to rectify some of the discriminatory aspects of the law. The decree addresses some aspects of the gender discrimination in the current law, and extends citizenship rights to those born before 1949, who were until now precluded from eligibility by a 2012 decree.

However, the decree does not completely remedy the discrimination in the law.

For example, children born out of wedlock to a German mother would be excluded, whereas children born out of wedlock to a German father would be eligible. Moreover, citizenship won’t be granted unconditionally to those who become eligible. Rather, applicants will need to demonstrate German language competence and knowledge of Germany’s legal and social order.

The determination of whether these criteria are satisfied in an individual case is to a large degree discretionary, based on a subjective assessment made by German consular officials. In light of Germany’s track record in relation to granting citizenship under Article 116(2) of the constitution, there’s a need for greater transparency and more objective decision-making criteria to ensure the decree is given effect to in the manner it was intended.

Another issue is that by requiring certain groups to pass the above tests but not others, the law perpetuates gender discrimination. For example, descendants of female ancestors need to demonstrate German language skills, but descendants of male ancestors do not.

Moreover, the generation born after 31 December, 1999, would be the last generation to be eligible under this decree to obtain German citizenship. Although an argument can be made that the rationale for restitution lessens with the passage of time, we can see no justification for limiting eligibility to this timeframe.

There are also serious questions as to whether this type of rule-making by decree is appropriate, not to mention constitutionally valid.

The difference between a decree and legislation isn’t merely symbolic. A future government could revoke the decree with the stroke of a pen, whereas changing legislation requires that the proposed law be debated by parliament.

A law, properly debated and enacted through Germany’s parliamentary procedures, faces much higher hurdles for reversal.

Another provision of Germany’s constitution requires that certain “essential” decisions must be made by parliament, rather than by the executive branch of government in the form of a decree.

In our view, there’s a strong argument that this issue is one that can only be dealt with by parliament.

Germany has a largely commendable track record in confronting its Nazi past. It should do right by the descendants of those who had to flee to save their lives.

Germany has a largely commendable track record in confronting its Nazi past. It should do right by the descendants of those who had to flee to save their lives – end decades of protracted, unjustifiable and arbitrary discrimination by enacting a law that provides for a simple path to citizenship for all descendants.

Requiring descendants to fight for their rights in the courts would add insult to injury, and would be particularly difficult for descendants in countries on the other side of the globe such as Australia.

Source: Germany eases citizenship rules, but Jewish roadblocks remain – Monash Lens