Successful constitutional complaint against discrimination on the basis of parentage in the context of restoring citizenship

Press Release No. 48/2020 of 17 June 2020

Order of 20 May 2020
2 BvR 2628/18

Pursuant to Art. 116(2) first sentence of the Basic Law (Grundgesetz – GG), 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. In an order published today, the Second Chamber of the Second Senate granted the constitutional complaint lodged by the daughter of a Jewish emigrant, as it was manifestly well-founded. The complainant’s application to have her citizenship restored had been denied on the grounds that, due to being born outside of marriage, she could not have acquired German citizenship through her father even if he had not been deprived of his citizenship. Such an interpretation violates the fundamental decisions on values enshrined in the Constitution. In particular, it does not fulfil the constitutional mandate in Art. 6(5) GG to treat all children equally, regardless of their parentage. It also amounts to a violation of the principle of equality between men and women set out in Art. 3(2) GG, since, under this interpretation, acquisition of German citizenship is only recognised in relation to the mother.

Facts of the case:

The complainant was born in the United States of America in 1967 and, like her mother, she is a US citizen. Her father was born in 1921 and his German citizenship had been revoked in 1938. He was Jewish and had fled to the US. The complainant’s parents were not married. Her father acknowledged her as his own child. In 2013, she applied to have her citizenship restored pursuant to Art. 116(2) GG and established her domicile within Germany. The Federal Office of Administration (Bundesverwaltungsamt) rejected her application: While the complainant’s father fell within the group of persons referred to in Art. 116(2) GG, it was also necessary to conduct a hypothetical review as to whether the fact that her father had been deprived of his German citizenship had any impact on her acquiring or not acquiring German citizenship. The complainant was born outside of marriage and therefore could not acquire her father’s citizenship at birth. Her action before the administrative courts and her complaint against the denial of leave to appeal on points of fact and law were unsuccessful.

Key considerations of the Chamber:

I. When applying provisions on citizenship that rely on descent to determine an individual’s familial relationships, decisions on values (Wertentscheidungen) enshrined in the Basic Law must be observed; namely those in which the Constitution sets out and defines gender relations and relationships within families as well as their relation to the state.
1. Art. 6(5) GG provides for a constitutional mandate that is aimed at ensuring equal legal status and equal treatment for all children regardless of their parents’ marital status. It also obligates the legislature to provide children born outside of marriage with the same opportunities for physical and mental development and for their position in society as are enjoyed by those born within marriage. Enshrined in Art. 6(5) GG is the decision on values whereby a child may not be disadvantaged due to being born outside of marriage. Indirectly disadvantaging children born outside of marriage is prohibited as well. Administration and judiciary must also have regard to the constitutional mandate in Art. 6(5) GG when applying the law. Any provision that differentiates between children born outside of marriage and those born within marriage can only be justified under constitutional law if their actual situation in life differs and if the provision is therefore absolutely necessary in order to achieve equality between children born outside of marriage and those born within marriage.
Furthermore, according to the case-law of the European Court of Human Rights, the arbitrary denial of citizenship might fall within the scope of protection of Art. 8 of the European Convention on Human Rights (ECHR), given the impact of such a measure on a person’s private life. This is because private life as protected by Art. 8 ECHR encompasses aspects of a person’s social identity. Where a state provides for the right to acquire its citizenship, such a right must be designed in a way that does not discriminate against children born outside of marriage. Treating such children differently amounts to discrimination within the meaning of Art. 14 ECHR if it does not pursue a legitimate aim or if any measures that are being used are not proportionate. The Member States do have a margin of appreciation, yet very weighty reasons are necessary if treating children born outside of marriage differently is to be compatible with the European Convention on Human Rights
2. In addition, Art. 3(2) GG prohibits any legal differentiation on the basis of sex or gender and protects both men and women from being placed at a disadvantage. Art. 3(2) GG can be of significance particularly as an objective standard for provisions that draw on the gender difference between parents. If a child’s citizenship is made conditional upon one or both of their parents’ citizenship, Art. 3(2) GG, in principle, prohibits a one-sided resolution of the problem as to the child’s citizenship that relies on either only the mother or only the father.
II. Measured against these standards, the challenged decisions do not satisfy constitutional requirements. Despite the provision’s broad wording, the courts based their interpretation of Art. 116(2) first sentence GG on a narrow meaning of the term “descendant” and thus did not have sufficient regard to the decision on values enshrined in Art. 6(5) GG – which is primarily relevant to this case – and in Art. 3(2) GG. The courts did not consider that interpreting the term “descendant” in a way that includes children born outside of marriage to a German father who was deprived of his citizenship is far more in line with the decisions on values enshrined in the Basic Law than the narrow interpretation chosen by them. For this reason, the former interpretation is preferable.
1. The challenged decisions draw on the case-law of the Federal Administrative Court (Bundesverwaltungsgericht), which sets out that, according to the legislative purpose, a descendant’s right to have their citizenship restored pursuant to Art. 116(2) first sentence GG is conditional upon the existence of a legally recognised relationship with the person who was deprived of their citizenship – a relationship which is required for the acquisition of German citizenship under citizenship law.
2. The interpretation given to the term “descendant” within the meaning of Art. 116(2) first sentence GG in the challenged decisions does not have sufficient regard to the significance and scope of Art. 6(5) GG and of Art. 3(2) GG. If a provision is worded in a way that allows for several different interpretations, the chosen interpretation should be the one whereby relevant fundamental rights provisions take effect to the greatest extent and which has regard to the decisions on values enshrined in the Constitution in the best possible way. Art. 116(2) GG can be interpreted in such a way.
It cannot be clearly inferred from its wording that it is restricted to descendants born within marriage. The specific position of Art. 116(2) GG within the Constitution also supports the interpretation that the term “descendant” includes children born outside of marriage, just like they are included in the scope of application of Art. 116(1) GG. The spirit and purpose of Art. 116(2) GG is the rectification of wrongs committed by the Nazi regime in the area of citizenship law. In principle, the legislative purpose of rectification prevents a narrower interpretation and thus also supports including children born outside of marriage to a German father who was deprived of his citizenship. Jewish citizens were deprived of their citizenship under Nazi legislation and this will remain a historical event which cannot be undone retrospectively. Yet Art. 116(2) GG strives to rectify, to the greatest possible extent, these wrongs committed against persecuted individuals who were deprived of their citizenship. Another reason that supports a broad interpretation is that the hypothetical review conducted when restoring a descendant’s citizenship perpetuates citizenship laws that are no longer in force today and are contrary to the decisions on values enshrined in the Constitution. Finally, the exclusion of children born outside of marriage cannot be inferred from the provision’s legislative history either.
3. It is thus required under constitutional law to interpret the term “descendant” in Art. 116(2) first sentence GG broadly and in doing so have regard to the decisions on values enshrined in Art. 6(5) GG and Art. 3(2) GG. Furthermore, the right to have their citizenship restored may not be denied to descendants who, pursuant to legal views that have since been overcome by the Basic Law, could not have acquired citizenship through their father even if he had not been deprived of his citizenship.
The interpretation adopted by the administrative courts in the challenged decisions primarily violates the prohibition of discrimination in Art. 6(5) GG. The fact that the constitutional legislature thought it necessary to include a sentence in the Constitution that prohibits any differentiation on the basis of parentage in order to successfully rule it out under the Basic Law argues against interpreting another part of the Basic Law in a way that excludes children born outside of marriage from acquiring German citizenship through their father. By prohibiting discrimination against children born outside of marriage, Art. 6(5) GG places human personality and human dignity at the centre of the system of values of the Constitution and of the law. This decision on values must be observed when determining the meaning of the term “descendant” in Art. 116(2) first sentence GG. Citizenship laws that are no longer in force today only established ties of children born outside of marriage to their mother; this is neither an essential (according to the case-law of the Federal Constitutional Court) nor a very weighty reason (according to the case-law of the European Court of Human Rights) that could justify any unequal treatment of children born outside of marriage in the context of acquiring German citizenship.
In addition, it cannot be reconciled with Art. 3(2) GG, as the objective standard, if the acquisition of German citizenship through jus sanguinis is only recognised in relation to one parent – i.e. the child’s mother – where the child is born outside of marriage. This is because the provisions on acquiring citizenship through one’s mother or father do not only determine the child’s objective status but also directly concern the parents’ legal position in relation to the state and to the family. Determining the acquisition of citizenship on the basis of the jus sanguinis principle is intended to convey and guarantee one’s ties to the family as a distinct social unit. In addition to that, shared ties to a specific state are part of the multifaceted close bond between parents and their children and contribute to documenting and strengthening cohesion within the family. Making such cohesion dependent on gender and only recognising it between a mother and her child but not between a father and his child disregards the decision on values enshrined in Art. 3(2) GG. When it comes to interpreting provisions on citizenship in light of the decisions on values enshrined in the Constitution, this not only applies in cases where the child’s parents are married to each other but also where the relationship between a child born outside of marriage and their parents is concerned.