Restoration of German Citizenship Post Brexit

On June 23, 2016, the United Kingdom (UK) held a referendum on whether to leave or to remain in the European Union (so called “Brexit”) with 51.9% of the people voting in favor of leaving. The withdrawal procedure from the European Union (EU) is governed by article 50 of the Treaty on European Union (TEU), which was introduced with the Treaty of Lisbon in 2007. The clause has never been used and presents uncharted political and legal territory. A lot of issues have to be resolved, among them the question of treatment of EU citizens in the UK and respectively the treatment of British nationals in other EU states. Approximately 1.3 million British expatriates live in other European states and 3 million EU nationals live in the UK.

British citizens, especially young people, have expressed their concerns that they will not be able to enjoy the freedom of movement and residence for EU citizens anymore once the withdrawal procedure is completed. Many have therefore taken proactive measures and applied for citizenship in other EU countries. Among these people are British Jews who have applied to have their German citizenship restored. The German Embassy in London stated that they had received more than 400 enquiries in the seven weeks since the Brexit vote, a considerable increase compared to the usual 20 per year.

Restoration of German Citizenship

Former German citizens whose citizenship was revoked between January 1933 and May 1945 by the Nazi regime and their descendants are entitled to have their German citizenship restored. Article 116, paragraph 2 of the German Basic Law, the country’s constitution, provides:

Former German citizens, who between 30 January 1933 and 8 May 1945 were deprived of their citizenship on political, racial, or religious grounds, and their descendants, shall on application have their citizenship restored. They shall be deemed never to have been deprived of their citizenship if they have established their domicile in Germany after 8 May 1945 and have not expressed a contrary intention.

Eligible persons can submit an application to the Federal Office of Administration (Bundesverwaltungsamt) to have their citizenship restored. Dual citizenship is possible with another member state of the European Union or with Switzerland. (Nationality Act, § 25, para. 1).

Revocation of Citizenship on Political, Racial, or Religious Grounds

Article 116, paragraph 2 of the Basic Law applies when someone has been deprived of their German citizenship on political, racial, or religious grounds. It therefore applies to persons who lost their citizenship through the following two Acts passed by the Nazi regime:

• Revocation of citizenship on a case-by-case basis according to the Act on the Revocation of Naturalization and Revocation of German Citizenship of July 14, 1933 (Ge­setz über den Wi­der­ruf von Ein­bür­ge­run­gen und die Ab­er­ken­nung der deut­schen Staats­an­ge­hö­rig­keit vom  14. Juli, 1933) or
• Automatic loss of citizenship according to the 11th Regulation on the Act on the Citizens of the Empire of November 25, 1941 (11th Regulation) (11. Ver­ord­nung zum Reichs­bür­ger­ge­setz vom 25. November, 1941).

This Act and Regulation were repealed in the Law No. 1 from the Control Council for Germany of August 30, 1945.

The revocation of German citizenship on a case-by-case basis according to the Act on the Revocation of Naturalization and Revocation of German Citizenship was published in the Imperial Gazette (Reichsanzeiger). Section 1 of the Act provided that a naturalization could be revoked if such a naturalization was considered “undesirable”. The regulation which implemented the Act specified that whether a naturalization was “undesirable” was to be judged according to “völkisch-nationalist principles”. Naturalized “East European Jews” were listed as an example of people whose naturalization should in particular be reconsidered unless they fought for Germany in the First World War.

Section 2 of the Act on the Revocation of Naturalization and Revocation of German Citizenship stated that the citizenship of a German residing abroad could be revoked if they “displayed behavior which violated the duty of loyalty towards the German Empire and the German people and thereby damaged German interests.” The regulation implementing the Act stipulated that such a behavior existed “when a German encouraged the hostile propaganda against Germany or degraded the reputation of Germany or the measures of the German government.”

Section 2 of the 11th Regulation on the Act on the Citizens of the Empire provided that all German citizens of Jewish faith who resided abroad at the time the 11th Regulation entered into force on November 27, 1941 or who subsequently established their residence outside of Germany would automatically be deprived of their German citizenship. This provision applied to Jews who fled Germany to save their life or who were deported to a ghetto or concentration camp in Eastern Europe. The regulation stipulated that in addition to the loss of citizenship their property would be confiscated by the German Empire. (11th Regulation, § 3).

No Automatic Restoration of Citizenship

In 1968, the German Federal Constitutional Court (Bundesverfassungsgericht) held with regard to the 11th Regulation that it was null and void from the beginning, because “it contradicts fundamental principles of justice to an intolerable extent.” The Court stated that the regulation was designed to continue the persecution of Jews even after they were able to flee Germany. It further explained that the drafters of the German Basic Law decided that there would be no automatic restoration of German citizenship because they did not want to force German citizenship on someone who had been a victim of the Nazi regime. An automatic restoration might not have been in their interest or compromised citizenship or property rights in another country, because of the designation of Germany as an “enemy state” during the Second World War by the United Nations. The compromise found was to give everyone living abroad who was deprived of German citizenship a legal right to have his or her citizenship restored, but only upon application. Anyone who was deprived of his or her citizenship and established residence in Germany after May 8, 1945 can avoid the restoration of citizenship by expressing a contrary intention.