Anonymous vs Federal Government of Germany (BVerwG 5 C 12.10)

Parties (including notable third parties)

Anonymous (Appellant); Federal Government of Germany (Appellee)

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Summary of Facts

The Appellant was born in Graz, Austria in 1956 and had been an Austrian citizen until his naturalisation as a German national. He left Austria and became a resident in Munich after the federal police in Graz investigated him for suspected serious fraud (which he contested). The Landesgericht für Strafsachen (Regional Court for Criminal Matters) in Graz issued a national arrest warrant against the Appellant in February 1997.

The Appellant applied for his naturalisation in Germany in February 1998. In the form, under ‘pending investigation procedures’, the Appellant wrote ‘none’. His naturalisation certificate of 25 January 1999 was handed over to the Appellant on 5 February 1999.  In August 1999, the authority responsible for nationality matters discovered the Austrian arrest warrant and the fact that the Appellant had been questioned by the Regional Court for Criminal Matters as early as in July 1995.

Subsequently, the Appellant’s naturalisation was withdrawn with retroactive effect on 4 July 2000 on the basis that the Appellant’s failure to disclose that he was subject to judicial investigation resulted in him obtaining German citizenship by deception.

The Appellant’s application for judicial review to the Administrative Court was dismissed, as was his appeal to the Higher Administrative Court (‘VGH’). His appeal to the Federal Administrative Court as a court of last resort resulted in remission of the case to the VGH.

The VGH investigated issues still open and sought legal advice regarding Austrian nationality law from the competent administrative agency in Styria. The agency informed the VGH (by letters on 8 October 2004 and 22 March 2005) that a withdrawal of German nationality with retroactive effect would not automatically lead to a revival of Austrian nationality and the Appellant had failed to fulfil the prerequisites for naturalisation.

The VGH rejected the Appellant’s appeal again on 25 October 2005. The Federal Administrative Court submitted the proceedings to the  European Court of Justice (‘ECJ’) by decision of 18 February 2008. In its judgment of 2 March 2010, the Grand Chamber of the ECJ decided the relevant issues regarding Union law.

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Legal Arguments

Legal Arguments by the Appellant

The Appellant argues that (1) the withdrawal of naturalisation was prohibited due to superior law (article 16(1) of the German Basic Law (‘GC’)); and (2) the presumption of innocence guaranteed under article 6(2) of European Convention on Human Rights (‘ECHR’) was also affected by withdrawing naturalisation.

Legal Arguments by the Appellee

The Appellee argued that (1) there was an overriding public interest in withdrawing German nationality obtained by deception; and (2) since the Appellant was married to a German, he would be able to obtain a residence permit and identification documents for business purposes as a stateless person.

Outcome

The Appellant’s application for judicial review was dismissed.

Legality of the Decision to Withdraw Citizenship

The Court held that the Appellee’s decision to withdraw the Appellant’s citizenship on 4 July 2000 had sufficient legal basis. Even though the withdrawal provision applicable to cases of naturalisation by deception did not exist at the time the decision was made (section 35, German Nationality Act (‘StAG’), the public authorities for nationality matters could rely on general withdrawal provisions for naturalisation acquired by intentional deception that existed prior to the amendment (see article 48, Codes of Administrative Procedure of the Land of Bavaria (‘VwVfG’). The legal requirements under these two provisions did not differ. As such, it was not necessary to examine whether the new federal law needed to be applied in the appeal procedures before the Court. The VGH correctly decided that the prerequisites for a withdrawal under both provisions were satisfied.

Constitutionality of the Decision to Withdraw Citizenship

The Court held that the withdrawal of citizenship was not constitutionally prohibited. Article 16(1), 1^st sentence of the GG (prohibiting the deprivation of German citizenship) and Article 16(1), 2^nd sentence of the GG (protecting against statelessness) did not preclude a withdrawal of naturalisation obtained by deception (BVerfG, judgment of 24 May 2006, para 50). Article 6(2) of the ECHR (presumption of innocence) was also not affected since the withdrawal of naturalisation was not based on an alleged criminal offence committed by the appellant.

Discretionary Considerations  

Since the Appellant lied about the existence of prerequisites for naturalisation, he obtained his naturalisation by deception. Thus, since his naturalisation had been unlawful from the beginning, it could be withdrawn at the Appellee’s discretion, taking into consideration discretionary considerations (as submitted by the Appellee on 3 May 2005) and pursuant to s 114, 2^nd sentence, Code of Administrative Court Procedure (‘VwGO’). This involves a weighing of conflicting private and public interests. There was therefore no reason to object to the discretionary decision from a national law perspective.

The Court also found that there was no abuse of discretion within the meaning of s 114, 1^st sentence of VwGO. The Appellee reasonably weighed the negative consequences of withdrawing German citizenship. Although a failure to recover Austrian nationality cannot be excluded, there was no error of assessment, even if statelessness was the consequence of withdrawing naturalisation.

The Appellant’s status under European Union law

In the ECJ’s judgment in March 2010, the ECJ ruled that revocation of state citizenship is compatible with Union law (i.e., Article 18 of the Treaty on the Functioning of the European Union (‘TFEU’)) when it was acquired by deception, provided the authorities observe the principle of proportionality. Moreover, a Member State is not bound, pursuant to Article 18 of the TFEU, to refrain refraining from withdrawing naturalisation merely because the person has not recovered the nationality of their Member State of origin.

Given the importance which primary law attaches to the status of Union citizenship, when assessing a decision to withdraw naturalisation, the consequences of the loss of rights of Union citizenship for the person concerned and, if relevant, for their family members, must also be assessed. The loss of rights must be justified in relation to:

• the gravity of an offence committed by a person;
• the lapse of time between the naturalisation decision and the withdrawal decision; and
• whether it is possible for that person to recover their original nationality.

Having regard to all of the circumstances, observing the principle of proportionality may require granting the person a reasonable period of time before a withdrawal decision takes effect to recover the nationality of their Member State of origin (and this is to be determined by the national court).

Further, the ECJ clarified that the state withdrawing naturalisation does not need to coordinate with other EU state authorities to prevent a temporary loss of Union citizenship where the person concerned essentially caused their ‘excessive loss of rights’ through deceptive conduct. However, in certain circumstances, the authority should consider whether to grant a reasonable period of time to the person concerned to recover their citizenship.

A necessary precondition of granting a reasonable period of time is that the person concerned makes serious efforts to restore their former nationality, files the necessary applications as early as possible and actively pursues them. Their ability to recover their nationality must also not lack prospects of success.

The Court ruled that, the circumstances of this case, the revocation of the Appellant’s naturalisation was proportionate. They explained that:

• Granting the Appellant a reasonable period of time to recover his Austrian citizenship was not required to ensure the withdrawal adheres to the principle of proportionality, although it could temporarily mitigate the consequences of withdrawing Union citizenship.
• Since the Appellant had failed to make reasonable efforts to recover his Austrian citizenship and file an application, the reasonable period of time should not be granted.
• Giving due consideration to all of the relevant circumstances and the weighing of public and private interests, there were no other reasons to warrant a further period. After 10 years of process duration, there was an overriding public interest to implement a binding withdrawal decision as promptly as possible.

The retroactive withdrawal was not disproportionate despite the potential consequences the withdrawal of nationality may have on the status of the Appellant. The withdrawal had no negative consequences for the Appellant’s wife or other members of his family and even as a stateless person, the Appellant enjoyed sufficient protection of residence under national law (because he was married to a German, continuing to have a relatively secure residence status). This mitigated the negative effects of losing his Union citizenship.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	German Nationality Act (‘StAG’)	Section 35
Domestic	Administrative Procedures Act (‘VwVfG’)	Article 48
Domestic	Grundgesetz (‘GG’) (German Basic Law)	Article 16(1)
Domestic	Code of Administrative Court Procedure (‘VwGO’)	Section 114
Regional	European Convention on Human Rights (‘ECHR’)	Article 6(2)
Regional	Treaty on the Functioning of the European Union (‘TFEU’)	Article 18

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Andrea Kirsch, ‘The Loss of Citizenship by Revocation of Naturalization or ex lege: Overview of German Case Law and Legislative Changes of 2009’ (2011) 12 German L.J. 1659.

• This article draws upon the case to identify how the loss of German citizenship may also affect an individual’s Union citizenship and the growing influence of Community law on national citizenship.
• The case is analysed in light of the legislative changes to German nationality law in 2009 with the introduction of section 35 of the StAG, and how the issue of imminent statelessness is considered with respect to Union citizenship.