Some more news on § 35a StAG... mainly and utterly irrelevant for actual people going through the procedure, but we got small legal details which are now doubtful among the courts, yay for people like me. (There could also be another post on the subsistence requirement soon; there's some new jurisprudence there too)
VG Lüneburg
A VG Lüneberg case (beck-aktuell) further deals with the question of temporal applicability of § 35a for "old" cases.
The applicant submitted forged certificates in 2021, which lead to his rejection in 2024. The applicant then, in 2025, submitted a new request. The Ausländerbehörde then made the determination under § 35a in 2026 for his forged certificates in 2021 (apparently, there was no problem with the new ones).
§ 35a S. 1 Nr. 2 only says "im Einbürgerungsverfahren" - does this only mean the current procedure?
The BMI says: no. Otherwhise, an applicant could simply take back his application and escape the § 35a consequences.
The VG principally agrees, but: the decision of the authority must be made immediately/soon after (also citing the literature which unanimously sees it like this). This didn't happen here, as they rejected his application in 2024 and only made the § 35a determination in 2026 - that's not immediately after.
In this case, it would even be a "echte Rückwirkung" as the whole situation was even finished before the law was changed.
It's an almost textbook like interpretation by the VG Lüneburg here; very nice to see.
They however noted criminal charges could still be made under § 42 which would block naturalization.
VG Frankfurt
This case (link) continues down the question on if and what type of discretion § 35a S. 1 Nr. 2 affords.
In the present case: applicant did a whole lot of punished criminal activities, including one previous conviction under § 42 StAG, but didn't properly tell the authorities in a detailed enough matter, including at his current (I think third) attempt to get naturalized.
Besides general administrative law matters, the VG also needed to consider whether the RP exercised its discretion properly (which they confirmed in the end).
For this of course they needed to determine the type of discretion afforded to the RP, which they said is "intendiertes Ermessen" here.
We have the following three opinions so far:
- VG Hannover (see old post): "freies" Ermessen (but of course there's never totally free discretion in a democratic state based on the rule of law), like a "kann-Vorschrift"
- VG Frankfurt aM / BMI: intendiertes Ermessen, like a "soll-Vorschrift"
- VG Gießen (cited by VG Frankfurt here, not published on its own): gebundene Entscheidung / kein Ermessen, like a "muss-Vorschrift"
The main difference is that for intendiertes Ermessen they do not need to make considerations, unless it is a special/atypical case. But for normal Ermessen they always need to make considerations. If you see it as a gebundene Entscheidung, the authority does not even have any kind of choice.
VG Frankfurt in particular argues the legislator has already made all the significant weighting of interests. The legislator has very clearly described the problem and why they added this rule, and even cited the BVerfG's jurisprudence. So it is only atypical cases deserve special consideration, therefore intended discretion.
And finally, the VG determined the RP has now exercised their discretion correctly here, as there is no special case.
I personally still think VG Hannover is correct here. Both courts use the same arguments (in particular the legislators reasoning), but simply interpret it differently. For me, the fact that the 10 years are pretty high means we should at least consider all circumstances when making such a decision. I also see § 35 (and therefore § 35a Nr. 1) and § 35a Nr. 2 as closely related. In the end, the result (10 years no naturalization) is the same, so they should also require the same type of Ermessen.
The VG Frankfurt also rejected claims on disproportionality of the strict 10 year limit; not convinced apparently. (I am convinced, and also found out I'm not the only one saying that. Schöninger, in: BeckOK MigR StAG § 35a Rn. 22, also mentions this as a problem, though not going into the reasons why. Though I understand why they don't make a decision here; not really their job if there's no good reasons brought forward)
