The complainant was born in Nigeria and naturalised in Germany in February 2002. The competent authorities rescinded the complainant's naturalisation after it was discovered that the naturalisation had been unlawful because the complainant had fraudulently deceived the State authorities. After the administrative courts upheld the authorities’ decision, the complainant asserted a violation of his rights under Article 16 paragraph 1 sentence 2 of the Constitution by means of a constitutional complaint to the Federal Constitutional Court. The Federal Constitutional Court held that the constitutional complaint was unsuccessful because, amongst others, Article 16 paragraph 1 sentence 1 and sentence 2 of the German Constitution does not per se prohibit the loss of nationality if the person concerned becomes stateless as a result.
- Article 16 of the German Constitution
- Article 8 of the 1961 Convention on the Reduction of Statelessness
- Article 7 of the 1997 European Convention on Nationality
- Section 48 of the State Administrative Procedure Act
The complainant is from Nigeria. After his wife had become a German national through naturalisation in 1997, he applied for naturalisation in Germany in November 1999. He stated that he was employed by a company in Germany and submitted a certificate issued by the company in his name as proof of this employment relationship. He was thereafter naturalised in February 2000.
In the course of subsequent criminal investigations against the complainant, it was discovered that he was not known at the company he supposedly worked at, but that another person was employed there under his name. In February 2002, the competent authority thereupon rescinded the complainant's naturalisation on the basis of Section 48 of the German State Administrative Procedure Act. The naturalisation had been unlawful because it presupposes that the foreigner is able to support himself and his dependents. This was in fact not the case. Since the complainant had fraudulently deceived the naturalisation authority by submitting knowingly false documents relevant to the decision regarding the existence of an employment relationship, the naturalisation was deemed to be no longer valid. The authority was also of the opinion that the complainant was not entitled to naturalisation at the present time, since the naturalisation requirements were not met due to his conviction and imprisonment in 2001. It had to be assumed that the complainant was still a Nigerian national, and that he would therefore not become stateless as a result of the deprivation of his naturalisation.
The action against this decision was rejected by the administrative court which held that even if the complainant did in fact become stateless (which could not be conclusively determined), this would not be contrary to the applicable law, because the naturalisation had been carried out on the basis of fraudulent misrepresentation, so there was no legitimate expectation worthy of protection. In such cases, the prospect of statelessness does not preclude the revocation of a naturalisation obtained by deliberate deception, in view of the principle of legality of the administration.
The complainant's action against this decision before the administrative court and higher administrative court were unsuccessful.
The complainant then asserted a violation of his rights under Article 16 paragraph 1 sentence 2 of the German Constitution by means of a constitutional complaint to the Federal Constitutional Court.
The complainant alleges a violation of his rights under Article 16 paragraph 1 sentence 1 and sentence 2 of the German Constitution.
The complainant argues that Article 16 paragraph 1 sentence 1 of the German Constitution prohibits the deprivation of nationality. The assumption that naturalisation obtained by fraudulent means is not protected by Article 16 paragraph 1 sentence 1 of the German Constitution is not supported by the wording of the provision. Rather, nationality is generally protected against deprivation by Article 16 paragraph 1 sentence 1 of the German Constitution. Nor can naturalisation be rescinded under the general provisions on withdrawal of an unlawful administrative act contained in the laws of administrative procedure. This is because the German Nationality Act contains more specific provisions for the loss of nationality, which preclude recourse to the general provisions.
Furthermore, deprivation of nationality is also ruled out because it would lead to the complainant's statelessness. Article 16 paragraph 1 sentence 1 and sentence 2 of the Constitution prohibits without restriction a loss of nationality in the event that the person concerned becomes stateless as a result.
The Federal Government argued that Article 16 (1) Sentence 1 of the German Constitution does not apply in cases of fraudulent naturalisation. It argued that the withdrawal of a fraudulently obtained nationality was supported by a historical and teleological interpretation of the article. In relation to the application of general administrative law, the Government argued that the legislature had not adopted special statutory provisions regarding the revocation of nationality because it had deemed the administrative procedural laws to be sufficient.
The Government also argued that the applicant had not lost his Nigerian nationality. Following enquiries by the German authorities, the embassy in Nigeria had confirmed that it was not yet possible to renounce one's Nigerian nationality due to a lack of implementation regulations for this. Therefore, receipt of the Nigerian embassy of the applicant's passport was not sufficient to indicate a release from his nationality.
The Government argued that, regardless, Article 16(1) Sentence 2 does not prohibit the revocation of nationality obtained through fraudulent means, even where this would result in statelessness, since the requirement of the legality of the administration took precedence. Such an exclusion was also permitted under the 1961 Convention on the Reduction of Statelessness and the 1997 European Convention on Nationality.
The prohibition of the deprivation of nationality as expressed in Article 16 paragraph 1 sentence 1 of the German Constitution does not preclude the revocation of an unlawful naturalisation obtained by deception.
With the prohibition of the deprivation of German nationality, the German Constitution distances itself from historical abuses of nationality law. The constitutional legislator intended Article 16 paragraph 1 sentence 1 of the German Constitution to protect against abuses of this kind, which robbed nationality of its significance as a reliable basis of equal membership and turned it into a means of exclusion instead of integration. Accordingly, the prohibition of the deprivation of German nationality prohibits a loss of nationality that impairs the function of nationality as a reliable basis of equal membership. But the reliability of the nationality status also includes the foreseeability of a loss and thus a sufficient degree of legal certainty and legal clarity in the area of nationality law loss provisions.
Therefore, Article 16 paragraph 1 sentence 1 of the German Constitution does not in principle preclude the deprivation of a naturalisation obtained by fraud. If the unlawfully naturalised person who has obtained naturalisation by deception or comparable misconduct is not allowed to keep the unlawfully acquired legal status, this does not impair the legitimate expectations of the person concerned regarding their nationality status, nor can the legitimate expectations of stability of others who have not allowed themselves to be guilty of such abuses in the naturalisation procedure be damaged.
Nor does the protection against statelessness included in Article 16 paragraph 1 sentence 2 of the German Constitution preclude the deprivation of the complainant's naturalisation.
To prevent the revocation of nationality that was obtained by fraud on the grounds that the person concerned might possibly become stateless would be so clearly outside the meaning and purpose of the provision that the wording, which in theory includes such a case, cannot be decisive for the interpretation. Avoiding statelessness as a consequence of the loss of nationality without exception was not required for the purpose of the Article. The fact that this was also not intended is shown by the fact that Article 16 paragraph 1 sentence 2 of the German Constitution does not expressly preclude a loss of German nationality with the consequence of statelessness for those cases in which the loss occurs with the will of the person concerned. The case of the deprivation of a naturalisation that was obtained by fraud, as a result of which the person concerned becomes stateless, cannot be directly assigned to this group of cases in which statelessness may arise as a result of an expressly permitted event. However, on closer examination, it is similar in that the person concerned has in any case wilfully and culpably caused the circumstances that led to the deprivation.
The creation of Article 16 paragraph 1 sentence 2 of the German Constitution was based on the intention to join international efforts to combat statelessness, in contrast to the National Socialist policy of expatriation and the expatriations of Germans in the course of expulsions. This objective allows for the acceptance of statelessness in the event of the revocation of a naturalisation obtained by fraud. There was and is no general principle of international law, nor is there any international agreement binding the Federal Republic of Germany that would preclude the acceptance of statelessness in such a case. International agreements expressly accept statelessness in the event of the revocation of naturalisations obtained by fraud. The 1961 Convention on the Reduction of Statelessness already prohibits, in principle, the deprivation of nationality in Article 8 paragraph 1 in the event that the person concerned becomes stateless as a result, but it expressly allows an exception for the case that the nationality was acquired by making false statements or by fraudulent means (Article 8 paragraph 2 lit. b) of the 1961 Convention on the Reduction of Statelessness). The 1997 European Convention on Nationality allows in Article 7 paragraph lit. b) the loss of nationality of a contracting State, amongst others, in the event that it was obtained by means of fraudulent conduct, false statements or concealment of a significant fact attributable to the applicant, extends this possibility of loss in Article 7 paragraph 2 to the applicant's children, and exempts this case from the prohibition of loss of nationality resulting in statelessness in Article 7 paragraph 3.
Dissenting Opinion:
The dissenting opinion argues that Section 48 of the German State Administrative Procedure Act is not sufficient legal basis for the deprivation of nationality, since the legislature has not regulated the particular consequences of such deprivation for the individual and the general public, such as statelessness, in the law. If the legislature decides to allow the revocation of nationality obtained via fraudulent naturalisation, it must itself determine the scope and limits of this option and make the necessary balancing decisions itself, taking into account the aforementioned special features of the matter.
The complainant was unsuccessful in his constitutional complaint against the deprivation of his nationality.
Federal Constitutional Court (Bundesverfassungsgericht, BVerfG), decision of 06/22/1990 - 2 BvR 116/90
Federal Constitutional Court (Bundesverfassungsgericht, BVerfG), decision of 08/10/2001 - BvR 2101/00
Federal Administrative Court (Bundesverwaltungsgericht, BVerwG), decision of 12/12/1995 - 9 C 113/95
German Federal Administrative Court (Bundesverwaltungsgericht, BVerwG), decision of 03/06/2003 - 1 C 19/02