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German Law/Art 116 Par 2/adopted descendants' eligibility

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QUESTION: Hello Mr Moser

Thank you for the most helpful and informative site on the web on these topics. I have looked through and can't find this question answered elsewhere, and hope that it may be helpful to others in the same situation.

I also LOVE your idea of donating a book from your wish list, and would be delighted to do so.  Please could you confirm if the wish list is up to date (to ensure you don't receive 10 copies of one volume and none of another!!)?

My situation is as follows:  

My parents were born German Jews and, despite the Nazi situation which forced them to emigrate as teenagers, have only the happiest childhood of memories of it.  Their memories and lifelong cultural context form a quintessential part of my identity.   I therefore feel part-German and - particularly in view of the ridiculous and embarrassing recent Brexit decision - would very much like to formalise that status.

My father was born in Berlin in 1920 (of German parents).  In 1936, aged 16, he fled Germany as a result of the Nazi persecution.  He was sent to school in England and in 1946 was naturalised British.    In 1949 he married my mother (born in Breslau in 1924/ emigrated to the UK in March 1939, also as the result of Nazi persecution/naturalised British in 1948).  

I was born in 1955 in London as a British Citizen, and was adopted by my parents in on 25th April 1956.

My father died in 2008,  but some time before that (though after I was an adult) he applied for, and got, joint German-UK citizenship.  His German passport expired 4 years before his death.

I know that under Article 116 Par 2 my parents "and their descendants" are eligible to apply for 'restored' German citizenship.

My question is:  does that extend to me as their ADOPTED child?  We do, of course, have all the official papers.

My cousin's situation is very similar,  although only his father was German-born (Breslau, 1920), his mother was English.  He was born in 1958 and adopted in the UK the following year.

With huge gratitude for any light you can cast on the adopted descendants' eligibility under Article 116 Para 2, Vielen Dank in advance, and best wishes.

ANSWER: Dear Jacqueline,

thank you very much for your kind words and your offer to send a book. My wishlist is indeed always up to date: https://andreasmoser.wordpress.com/contact/books-my-wishlist/

Sorry for the delay in answering, but your question is indeed one which I haven't answered before and which I needed to do some research on.

It hinges on the definition of "Abkömmling" in Art. 116 II GG, which is best translated as "descendent". Art. 116 II GG does not give any clue on whether this includes adoptive children, nor could I find any court decision on it. There is no definition of "Abkömmlinge" in the Civil Code either.

When we look at other case law where the term "Abkömmlinge" was relevant, we find Federal Financial Court, case no. II 116/62 U from 1964, in which the court ruled that for the purpose of inheritance tax, the term "Abkömmlinge" only refers to "children related by blood". I wouldn't say this decision is too relevant though, in particular because of the time that has passed since.

A more relevant and recent decision by the Federal Administrative court, case no. 5 C 19.05 from 2006, is probably more helpful: This pertained to Art. 116 I GG though, not to Art. 116 II GG. The court ruled that a person adopted as an adult is not an "Abkömmling". The court didn't have to rule on someone adopted as a minor because this was not the question before the court in that case, but it does argue based on the difference between the adoption of adults and children (para. 3 and 4 of the reasons of that decision).

Because the situations in Art. 116 I and II GG are more similar than your situation with one of inheritance tax, I would argue with the second of the two decisions that because you were adopted as a minor, your are covered by the term "Abkömmling" within the meaning of Art. 116 II GG.

The same applies to your cousin. A German father was and is or rather would have been enough to pass on Germany citizenship.

I recommend that you file the application for German citizenship with your adoption paperwork. It might be that there is no problem at all and we just don't know about this interpretation of "Abkömmling" because none of the cases posed a problem and none of them were published. But if you do run into problems, please contact me and we'll take it from there.

I wish you all the best,
Alles Gute!

Andreas Moser
www.andreasmoser.wordpress.com



---------- FOLLOW-UP ----------

QUESTION: Dear Mr Moser

Thank you so much for going to all this trouble, very much appreciated.  I have been trying to send you a couple of books - sending you an e-mail privately re dificulties getting them despatched to Peru;  perhaps you can advise how best to do so (from the UK).

We were amazed ourselves that we couldn't find a single reference to this exact circumstance anywhere on the web (other than the German Embassy's to "Citizenship by Adoption", which we didn't understand).  Isn't that strange?!

Since I wrote you originally, I have received a disheartening message from the Bundesverwaltungsamt in Köln. I am including their contact details in my mail in case it is of any interest.   If I understand it correctly, it says 'no chance you could ever get German citizenship, because you were adopted before 1st Jan 1977".   Could this possibly be correct as (anyway under English law, and for the time being we are ALL Europe now), adopted children have exactly the same rights as biological ones.  To suggest legally adopted infants are somehow 'less than' biological children seems extremely discriminatory.  (… that is certainly not how we or our adoptive parents feel, either!).    Plus, what is the significance of the seemingly-random date of 1.1.1977 (which would exclude most if not all of the Nazi refugees' adopted children, due to age/timing!)

If you were able/willing to shed any further light on this, and advise us if, in your view, it would still be worth giving the applications a go and/or if/how we could appeal, and to whom, I'd be most grateful.  It might be helpful to others who find themselves in a similar position.  But if not, we will understand that you must be very busy settling into your new home in Peru - which looks incredibly beautiful, and is bound to be most interesting.  Following your Happy Hermit site with the greatest of interest and some considerable degree of envy.  But deriving a lot of vicarious pleasure from it.

Again, with much gratitude for your trouble, very much appreciated -- thank you.

Alles Gute! Jackie

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1 August 2016

Sehr geehrte Frau Danson,

Ihre E-Mail wurde mir zuständigkeitshalber zur Beantwortung zugeleitet.
Sie schreiben, dass die Adoption 1956 erfolgte. Hierzu ist zu sagen, dass das deutsche Adoptionsgesetz erst am 1.1.1977 in Kraft trat, so dass vorher erfolgte Adoptionen ohne staatsangehörigkeitsrechtliche Auswirkung – Verlust oder Erwerb der deutschen Staatsangehörigkeit - bleiben.
Somit können Sie staatsangehörigkeitsrechtlich nicht von Ihrem Adoptivvater die Staatsangehörigkeit ableiten, sondern nur von Ihrem leiblichen Vater.
Ein entsprechender Antrag hätte bei Ableitung über den Adoptivvater keine Aussicht auf Erfolg.
Weitergehende Auskünfte können Ihnen die deutschen Auslandsvertretungen im Vereinigten Königreich, wie z. B. die deutsche Botschaft in London erteilen.

Mit freundlichen Grüßen
Im Auftrag

Answer
Dear Jackie,

"oh dios mio" as we say in South America. I did indeed overlook that the provision granting German citizenship through adoption was only introduced in the German Citizenship Act (StAG) in 1977. Hence the cut-off date because the law does not apply retroactively.

This does indeed lead to your ineligibility under Art. 116 II GG because the children/descendants are only covered if they had received German citizenship if your parent(s) still had held German citizenship at the time of your birth or in this case adoption. But as you were adopted before 1977, even if your parents had never lost German citizenship, it wouldn't have been passed on to you through the adoption.

This leaves you with one other possibility, which is a bit more complicated: § 14 StAG allows the naturalization as a German without living in Germany if you have very close ties to Germany. However, this naturalization is granted by discretion only, so you would need to present a very compelling case, detailing your cultural, family, professional, academic and other ties to Germany. You would also need to take a German language test and be able to prove financial independence.

I am sorry that there is no easier way.

Thank you very much again for your offer of a book package!
I will reply to your personal e-mail with the details.

Andreas Moser
www.andreasmoser.wordpress.com

German Law

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Andreas Moser

Expertise

Extensive experience in international family law, especially international child abductions and child custody cases. All other areas of German law as well: constitutional law, criminal law, business and contract law, immigration law, inheritance law, and so on.

Experience

Lawyer in Germany from 2002 to 2009. Lawyer for US Army JAG Corps before. Bar-certified specialisation in family law and in administrative law. Articles and lectures about international and domestic family law.

Publications
www.andreasmoser.wordpress.com

Education/Credentials
2000 Law Degree from University of Regensburg, Germany 2002 admitted to the bar (until 2009) 2013 MA Philosophy at the Open University, UK

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