Acquisition of German Citizenship by Domestic Birth

Normally, Germany grants citizenship to persons born to German nationals – regardless of their residence. Since 2002, children of non-Germans have had the possibility to obtain German citizenship temporarily until they turn 18. §4 StAG requires i.a. that the parents have legally had their habitual residence here for eight consecutive years. But what happens if they apply to renew the residency permit a few days too late? The BVerwG decided this question on 18.11.2004 (re 1 C 31.03).


But first one word of explanation: this granting of citizenship is not naturalization! Normally, naturalization is understood as giving up one’s previous citizenship to obtain a different one. This regulation grants temporary citizenship to the newborn children of non-Germans.

The discussion in these court proceedings focused on the prerequisites for continuous residency in Germany. The general opinion is that a person has continuous residency if he or she entered the country not just temporarily, but lives here for an indeterminate period. Discontinuation of his or her residency seems uncertain. It goes without saying that this sojourn must also be legal.

The competent office of foreigners’ affairs argued that the failure to prolong a residence permit punctually constitutes a substantial interruption in the legality of residence. This argument was to be supported by the wording of that section. The exceptional rule of §89 III AuslG (now §12b III StAG) was not applicable. Analogous application would also not be possible because there is no regulation gap. §89 III AuslG sets up rules and exceptions for temporarily leaving Germany without losing one’s residency status. This regulation reads “Interruptions of legal residence remain exempt from consideration if they ensue from the foreigner not applying punctually for a permit the first time or gaining permission to extend the sojourn or not being in possession of a valid passport.” The office argued its opinion that the requirements for integration within §4 III StAG on the one hand, and §§85 et seq. AuslG on the other, were too pergent to be used to construe the new law.

The court decided that it is not necessary only that residence as permitted by the foreigners’ office to qualify. Residence has to be essentially unlimited in time, and for it to have consolidated into presumed permanent residency. As for the legality of residence, having a residence permit usually fulfills this condition. Over and above this permit, the time that is permission-free or has elapsed been permitted fictively, according to § 69 III AuslG (now §81 AufenthG) must also be computed into the residency period.

Published on the old CMS: 2006/7/16
Read on the old CMS till November 2008: 194 reads

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