34. There are safeguards in German nationality law to prevent statelessness for some
children born in Germany, including in the case of foundlings, adopted children and
children born abroad to German nationals if they would otherwise be stateless (although
registration is required). However, there are gaps that allow for children to be born
stateless in the country. The provisions are either automatic or non-automatic
depending on which applies. Under the Nationality Act,43 all children born in Germany
after 1 January 2000 automatically acquire German nationality if at least one parent has
been legally and habitually resident for eight years and has been granted permanent
residence (or residence under EU law). Where the Nationality Act does not apply, there
is a safeguard in the 1961 Convention implementing law44, which is not conditional on
the parents' legal status but is non-automatic and requires an application for
naturalisation before the age of 21, based on five years of continuous, legal residence.
Additionally, the child or young person must not have any juvenile conviction of more
than five years. In practice, evidence of the child's non-recognition as a national by
another State must be provided, and the authorities must check whether the parents
are able to transmit their nationality, or if another State may recognise the child as a
national in the future. In practice, there are no procedures in place to allow screening
for statelessness upon birth with many children being reported with unclear nationality
status. Moreover, neither authorities nor legal experts are aware of the existence of
specific legislation that transposes the 1961 Convention, and it remains unapplied as it
is placed outside of the Nationality Act, which increases its own invisibility.
35. The 1961 Convention does not allow States to impose conditions on the automatic
acquisition of nationality, which is regulated by the Nationality Act in Germany.
Moreover, the 1961 Convention does not permit States to include the condition of ‘legal
residence’ (‘rechtmäßiger Aufenthalt’) among the conditions that may be imposed for
acquisition of nationality by application, which is regulated by the 1961 Convention
implementing law in the country. Imposing a requirement to have ‘legal residence’ on
children born in Germany - who would otherwise be stateless - and their parents is
therefore in breach of Germany’s international obligations.
36. A legislative proposal to amend the German Nationality Act is expected to be published
in April 2023, which would reduce the length of the ‘legal residence’ requirements for
parents of children born in Germany. The co-submitting partners urge the German
Government to take into consideration the concerns expressed in this submission, and
to remove the requirement that parents have ‘legal residence’ in Germany for children
who would otherwise be stateless to acquire nationality.
Issues with birth registration
37. States should also put in place measures to ensure universal birth registration,
regardless of the residence or documentation status of their parents or family members,
which is key to children effectively exercising their right to a nationality. Birth
registration is vital because it provides official evidence of key facts such as birthplace
43
Nationality Act (Staatsangehörigkeitsgesetz in der im Bundesgesetzblatt Teil III, Gliederungsnummer 102-1, veröffentlichten
bereinigten Fassung), available at:
https://www.gesetze-im-internet.de/stag/BJNR005830913.html.
44 Implementing Law to the Convention of 30 August 1961 on the Reduction of Statelessness and to the Convention of 13
September 1973 on the Reduction of Cases of Statelessness (Law on the Reduction of Statelessness (Ausführungsgesetz zu dem
Übereinkommen vom 30. August 1961 zur Verminderung der Staatenlosigkeit und zu dem Übereinkommen vom 13. September
1973 zur Verringerung der Fälle von Staatenlosigkeit Gesetz zur Verminderung der Staatenlosigkeit: BGBl 1977 I, 1101-1102),
available at: https://www.gesetze-im-internet.de/staatenlmind_bkag/StaatenlMind%C3%9CbkAG.pdf.
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