I. Summary

I.
The complainant, who comes from Nigeria, applied for German citizenship in November 1999. In his application he stated he had a job in Germany and submitted a certificate issued in his name confirming that he was in an employment relationship. On 9 February 2000, he was naturalised.
During a criminal investigation procedure initiated against the complainant soon afterwards it was noted that he was in fact not known to the employer he had named and that another person was employed by that employer under his name. In February 2002, the competent authority revoked the naturalisation and in doing so relied on § 48 of the Administrative Procedure Act of Baden-Württemberg. This provision is the general legal basis for the revocation of favourable administrative acts that are unlawful.
The action brought by the complainant against this act was unsuccessful before the competent courts. Thereupon the complainant lodged a constitutional complaint before the Federal Constitutional Court alleging that his rights pursuant to Article 16.1.1 and 16.1.2 of the Basic Law had been violated.

The wording of Article 16.1 of the Basic Law is as follows:

Article 16 (Citizenship, extradition)
(1) No German may be deprived of his citizenship. Citizenship may only be lost pursuant to a law, and against the will of the person affected only if he does not become stateless as a result.

II.
The Second Senate of the Federal Constitutional Court rejected the constitutional complaint as unfounded. It found that the acts challenged by the complainant do not violate his fundamental rights.
The decision is based on the following key considerations:
1. The prohibition of a deprivation of German citizenship in Article 16.1.1 of the Basic Law does not rule out the revocation of an unlawful naturalisation obtained by deception.
Through the prohibition of a deprivation of German citizenship, the Constitution distances itself from the historical abuses of citizenship law, in particular during the Nazi era. Regarding Article 16.1.1 of the Basic Law, the constitutional legislature’s intention was to guarantee protection against those abuses that deprived citizenship of its significance as a reliable basis for national belonging founded on equal rights and instead turned it into a means of exclusion rather than integration. Accordingly, deprivation of citizenship is every kind of imposition of loss that impairs the function of citizenship as a reliable basis for national belonging founded on equal rights. Reliability of one’s citizenship status also includes foreseeability of its loss and thus a sufficient degree of legal certainty and legal clarity in the rules on loss of citizenship.

Accordingly, Article 16.1.1 of the Basic Law does not generally exclude the revocation of a naturalisation obtained by deception. A person’s legitimate expectations are not impaired if that person has obtained nationality unlawfully by deception or comparable misconduct and such person is not allowed to retain the legal position improperly acquired. Furthermore, the expectations of others – who have not done anything wrong in their naturalisation proceedings – that their citizenship will continue to exist will not be disappointed.

2. Furthermore, the protection against statelessness anchored in Article 16.1.2 of the Basic Law does not stand in the way of a revocation of the complainant’s naturalisation.
Frustrating the revocation of nationality obtained by deception because it could possibly render the person affected stateless is so clearly against the provision’s spirit and purpose that its wording, which is excessively broad as concerns the case at hand, cannot be decisive for the interpretation of the provision. The intention with regard to Article 16.1.2 of the Basic Law was to join international legal efforts to combat statelessness and create a distance to the Nazi expatriation policy and the expatriations which affected Germans during the expulsions. Statelessness resulting from a revocation of naturalisation obtained by deception is compatible with this goal. There are and have been no general principles of public international law or international agreements binding on the Federal Republic of Germany which exclude the potentially resulting statelessness in such a case. Statelessness is expressly accepted in international agreements precisely in the event that a naturalisation obtained by deception is revoked.

3. The general rule governing the revocation of favourable administrative acts laid down in § 48 of the Administrative Procedure Act of Baden-Württemberg suffices as a statutory basis for the revocation of a naturalisation obtained by deception.
The provision satisfies the requirement of a statutory provision contained in Article 16.1.2 of the Basic Law, at least if the person affected has obtained naturalisation by deception. Its application is not excluded on the grounds that the Land Baden-Württemberg lacks legislative power. Furthermore, the parliamentary legislature was not obliged to establish a specific rule under citizenship law for cases in which naturalisations are obtained by deception.
Article 16.1 of the Basic Law calls for a statutory regulation of the acquisition, cancellation as well as the loss of citizenship which is commensurate with the importance of citizenship status. Whether or not these prerequisites have been satisfied cannot be decided solely on the basis of a provision’s link to a specific law, but depends, first and foremost, on whether the constitutional requirements with regard to its content are taken account of. In the present case, due to the fact that it could be proven that the person affected had himself procured the naturalisation through deception and because naturalisation was then revoked within good time, the constitutional requirements with regard to the legal certainty and legal clarity of statutes required are met if the person affected was able to foresee that revocation - on the basis of a general statutory provision of administrative procedural law - could be a consequence of his action. In such a case, the deceiver cannot claim to have legitimate expectations worthy of protection. For that reason, in a state under the rule of law, the retroactive restoration of lawful circumstances always prevails. Under § 48 of the Administrative Procedure Act of Baden-Württemberg, the public administration’s discretion is subject to a weighing of the importance of the protection of legitimate expectations versus the legality of administrative acts.

Nevertheless, there may be situations in which § 48 of the Administrative Procedure Act of Baden-Württemberg would not provide an adequate legal basis. The need to regulate the cancellation of naturalisations and the nullity of naturalisation acts is particularly apparent in situations (that are not relevant in the present case) in which the lawfulness of the naturalisation of relatives, especially children, is at issue. The legislature must find an answer to the question of what effects misconduct during proceedings for a naturalisation can have on the status quo of citizenship by third parties who were not involved in the misconduct.

Four judges concurred on this point of the decision whilst there were four dissenting votes.
Since the votes of the Senate were tied with regard to point 3, a violation of the Basic Law was not established (§ 15.4.3 of the Federal Constitutional Court Act).