Dual Citizenship for Brits in Germany –  the facts and  the implications of the new proposed German draft law? (Brexit-Übergangsgesetz) 

Berlin and Munich, 5 October 2018

Dual citizenship (also known as dual nationality) is becoming increasingly important to many British citizens because many see it as a way to secure their living, work or family situation as best as possible post-Brexit. This is reflected in the large increase in numbers of Brits applying for Germany citizenship across the country. Dual citizenship is often important because Britons living in Germany frequently have family or other ties to the UK and there is the possibility that future UK immigration policy may make it hard for non-citizens to return to the UK, for example, to care for elderly relatives.

In Germany, a new draft law, the Brexit-Übergangsgesetz (Brexit Transition Act, or BrexitÜG for short), has been introduced that addresses some of the key problems facing Britons in the rush to apply for German citizenship. You can read about this draft bill on the German Federal Foreign Office website here (in German).

What is the current situation regarding dual citizenship?

At the moment, the UK is a full EU member state. When taking German citizenship, citizens of another EU member state are permitted to retain their current citizenship to become dual citizens. However, citizens of non-EU member states are required to give up their current citizenship in order to take German citizenship. Under German law, it is the EU membership status of the country on the date of the decision regarding German citizenship that counts and not the date of the application.

How would the proposed law change this?

The Brexit-Übergangsgesetz is draft German legislation that would provide legal clarity during the transition period foreseen by the draft Withdrawal Agreement where provisions in German federal law refer to membership of the European Union or the European Atomic Energy Community. This includes aspects of naturalisation of British citizens in Germany and German citizens in the UK.

The proposed law would enable British citizens to retain their British citizenship when taking German citizenship and to become dual national citizens, even when a positive decision on the application for German citizenship is made after the expiry of the transition period, provided all other requirements for German citizenship are completed before the 31 December 2020.

With long residence requirements and long processing times in some areas of Germany, this proposed law potentially avoids certain Britons falling foul of the deadline and losing their right to dual citizenship , simply because their applications could not be processed before the end of the transition period.

What may this mean for you?

For many British citizens applying for German citizenship, in particular those whose applications have only recently or not yet been submitted, this is a very positive proposal.

Unfortunately, there are a number of caveats:

• The proposal would have to have been passed into German law.
• The proposal would only apply if the Withdrawal Agreement is signed and the transition period therefore comes into operation (i.e. the law would not apply under a “no-deal Brexit”).

• The requirements for German citizenship would have to be fulfilled and the citizenship application made before or during the transition period. This means some Britons who arrived in Germany more recently, in some cases even before the UK referendum was held or Article 50 was activated, would not benefit from this bill.

What has happened so far?

British in Germany began lobbying the German authorities at the state and federal level on dual citizenship over a year ago, including in personal meetings with regional Brexit representatives, at the Federal Ministry of the Interior and the German Federal Foreign Office, which is coordinating all Brexit-related issues across all the federal ministries.

In July 2018, British in Germany was one of a number of groups that were invited to comment on the initial draft bill (Referentenentwurf). You can read the initial draft here (PDF in German).

Our advocacy team consulted on this and we invited British in Germany members to give us their thoughts in an open call for submissions.

This was collated into a position paper that was submitted to the ministry. You can read our position paper here (PDF in German).

In brief, the position paper presents the view that the legal concept of “legitimate expectation” should be extended to Britons who moved to Germany before the activation of Article 50 (29.03.2017) or the end of the transition period (31.12.2020) and as such, that the right to retain British citizenship when taking German citizenship should be extended to either or both of these groups. We feel this is justified, as these people exercised their right to freedom of movement in the legitimate expectation that they would be able to become dual citizens.

Many of the submissions made to us by British in Germany members focussed on the fact that the law provides no security in the event of a “no-deal” scenario. However, as the draft law is predicated on there being a transition period, from a legal perspective, it was judged that the position paper was not the best place to make that point. Other submissions noted that the proposed law makes no provisions for German citizens applying for British citizenship in the UK and the process of applying for prior approval for the retention of German citizenship.

We decided to make these points in an additional covering letter and also to invite the German authorities to provide guidance to British and German citizens on action they can take to minimise the effects of a no-deal scenario.

British in Germany was subsequently contacted by the German Federal Foreign Office with follow-up questions, in particular on the points made in the covering letter.

On 5 September 2018 the “Government Draft” (Regierungsentwurf) was published. You can read it here (PDF in German). This is the version that has been submitted to the Bundestag and is being considered in its committees.

So what changed in the “Government Draft”?

For British citizens in Germany, unfortunately not much. It is our reading of the government draft that the language has been modified to improve clarity, but that the effect of the proposed law has remained the same.

However, the law has been extended to cover German citizens in Britain. Under the new proposal, Germans taking on British citizenship would not lose their German citizenship under § 25,1,1 Staatsangehörigkeitsgesetz, even when British citizenship is granted after the transition period.

We welcome the changes made for German citizens in the UK and will continue to make clear the important reasons for dual citizenship as well as tracking progress of the bill through the legislative process.

Where to from here?

It is important to stress that we are extremely grateful to the German authorities for listening to the concerns of British citizens in Germany, for introducing this bill, and for making a vast improvement, even if it’s not perfect, if the bill is adopted. This is substantially more than we have seen on the British side.

Our focus during the last mile is now on pushing for ring-fencing citizens’ rights to ensure that we have an acceptable situation irrespective of how the Brexit negotiations in Brussels conclude. This includes, for example, any proposed registration mechanism.

If you would like to support our efforts you might consider attending one of our public meetings, offering your services or making a donation.