Published: 16 April 2024 Author: Stefan Talmon
For a long time, the avoidance of multiple nationality, that is, the simultaneous possession of two or more nationalities by the same person, was one of the principles of German nationality law. This changed on 26 June 2024, when the Law to Modernise the Nationality Law entered into force. The modernisation law abandoned the principle of avoiding multiple nationality and allowed Germans to hold multiple nationalities. One of the declared aims of the law was to adapt the existing Nationality Law to ‘the requirements of an immigration society’.
In 2024, some 14 per cent of the population in Germany did not hold a German passport – just over twelve million people. Of these, some 5.3 million had been living in Germany for at least ten years. It was hoped that by allowing multiple nationality many immigrants would acquire German nationality in addition to the nationality of their home State. In its explanatory memorandum on the Bill to Modernise the Nationality Law, the Federal Government stated:
The principle of avoiding multiple nationality, which is anchored in German nationality law, represents an obstacle for many people wishing to be naturalised. Many foreigners consider themselves to belong to Germany, but do not want to completely cut off their ties with their country of origin, which they see manifested in their previous nationality.
The change in the law to some extent aligned the legal situation with reality. For some time, the principle of avoiding multiple nationality had no longer corresponded to the actual naturalisation practice. For the last fifteen years, on average more than half of all naturalisations led to multiple nationality and the trend was rising. In 2018, 59.3 percent of naturalised persons retained at least one other nationality; 2019: 61.9 per cent; 2020: 63.2 per cent; 2021: 69 per cent; and 2022: 74.1 per cent. This resulted in the number of Germans with multiple nationality steadily increasing since 2000. By 2024, the principle of avoiding multiple nationality was therefore no longer the rule, but the exception.
While the Federal Government claimed that multiple nationality was widely accepted internationally, very few States allowed for unrestricted multiple nationality. In fact, there were still almost sixty countries, including Austria, China and Japan, that did not allow multiple nationality for adults or at all.
According to the modernised nationality law, multiple nationality could arise in a variety of ways:
- Foreign nationals acquiring German nationality by naturalisation could retain their foreign nationality.
- Children born in Germany to foreign parents automatically acquired German nationality at birth, in addition to retaining the nationality of their parents. This was based on the principle of jus soli, if at least one of their parents had been a legal resident in Germany for at least five years and had a permanent right of residence at the time of the child’s birth. So called jus soli Germans, irrespective of where they grew up, no longer needed to choose between their German nationality and that of their parents.
- Children born to parents where only one parent held German nationality (bi-national parents) acquired German nationality at birth and could also acquire the nationality of the other parent at the same time.
- Children born after the Basic Law entered into force and their descendants who acquired German nationality by declaration could retain their foreign nationality.
- Persons who, between 30 January 1933 and 8 May 1945, had been deprived of their German nationality for political, racial or religious reasons and their descendants, whose German nationality was restored upon application, could retain their foreign nationality.
- Ethnic German re-settlers and their family members who acquired German nationality by issuance of a special certificate could keep their foreign nationality.
- German nationals who acquired a foreign nationality upon application were able to retain their German nationality. They no longer required to apply for special written permission to retain their German nationality.
- Germans under the age of majority retained their German nationality even if, as a result of adoption by a foreigner, they acquired the adopting person’s nationality by virtue of such adoption.
It was estimated that the modernised Nationality Law would lead to some 1.25 million foreign nationals in Germany acquiring German nationality in addition to another nationality. In subsequent years, some 200,000 new German nationals with multiple nationality could be added every year. Considering that, by some estimates, in 2022 there were already some 2.74 million German nationals with at least one foreign nationality, this could lead to more than five million Germans with multiple nationality by 2030. Other estimates were much higher, predicting up to seven million or close to 10 per cent of Germans with multiple nationality.
The Federal Government saw no legal problems with an increase in multiple nationality. In its explanatory memorandum on the Bill to Modernise the Nationality Law, the Federal Government stated:
[I]nternational … law requirements do not conflict with the abandonment of the principle of avoiding multiple nationality. … Legal problems due to multiple nationality have already been largely resolved through international agreements and legal regulations.
In international law, the question of multiple nationality is dealt with, inter alia, in two treaties concluded under the auspices of the Council of Europe to which Germany became a party: the 1963 Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, and the 1997 European Convention on Nationality. While the 1997 Convention accepts multiple nationality and attempts to find ‘appropriate solutions to consequences of multiple nationality and in particular as regards the rights and duties of multiple nationals’, the 1963 Convention is based on the premise ‘that cases of multiple nationality are liable to cause difficulties’. The 1963 Convention therefore lays down rules on the reduction of cases of multiple nationality, including the loss of nationality upon the acquisition of another nationality.
Although the restrictions on multiple nationality under the 1963 Convention were later eased in two protocols to the Convention, the general admission of multiple nationality in the modernised German Nationality Act would have been incompatible with the Convention. The 1963 Convention, however, no longer provided an obstacle to the modernised Nationality Act, as in December 2001 Germany had become the first and so far only country to denounce the Convention. The 1963 Convention on Reduction of Cases of Multiple Nationality is one, if not the only example of a multilateral treaty denounced by the Federal Republic of Germany. There are thus no international treaty obligations that prevent Germany from allowing unrestricted multiple nationality.
The Federal Government’s statement that ‘legal problems due to multiple nationality have already been largely resolved’ seems to be somewhat overoptimistic. There are various areas in which multiple nationality may cause problems both for the individuals holding multiple nationalities as well as their States of nationality.
Military Service
While it is correct that since the suspension of compulsory military service in Germany in March 2011, the danger of multiple nationals having to do military service in two countries has been removed for the moment, the situation would change if compulsory military service in Germany were to be reinstated.
The conclusion of bilateral and multilateral agreements on the fulfilment of military obligations, may minimise the risk of having to serve in the armed forces of two countries, it cannot completely eliminate that risk. In the absence of such agreements, multiple nationals may be obligated to perform military service in their other State of nationality, even if they have served in the German armed forces. If the period of military service completed in Germany only partially covers the statutory period of military service, for example, in Greece, Greek-German nationals who want to reside in Greece must either complete the remainder of the statutory period in Greece or buy their way out of the additional military service term to which you are obligated.
Furthermore, German multiple nationals face the risk of being conscripted into the armed forces of their other State of nationality against their will. For example, on 21 September 2022 the Russian President ordered a partial mobilization in order to raise new troops for the Russian aggression against Ukraine. This triggered the German embassy in Russia to issue the following warning:
German-Russian dual nationals must also observe that they are viewed by the Russian authorities exclusively as Russian nationals. This also applies in the event of a possible call-up to the Russian armed forces for military operations. The embassy cannot provide them with any consular protection as they are considered by the Russian authorities exclusively as Russian nationals. If you are currently in the Russian Federation, examine whether your continued presence is really necessary. If not, you should consider leaving the country.
German multiple nationals who voluntarily enlist with the armed forces or a comparable armed organisation of their other State of nationality automatically lose their German nationality upon the beginning of voluntary military service unless they do so with the consent of the Federal Ministry of Defence, or a body designated by it. This loss of nationality affected, in particular, German-Israeli dual nationals who served in the Israel Defence Force beyond their term of legal compulsory military service. In order to avoid the automatic loss of German nationality since 6 July 2011 the necessary consent is generally deemed to have been given with regard to service in the armed forces of EU Member States and Israel. However, for other countries no comparable arrangement is in place.
Taxation
While in 2024, Germany had some ninety-six double taxation agreements in place with other States, this still left some one hundred States with no such agreement. In addition, not all agreements covered taxes of all kinds. As States may tax their nationals even if residing abroad, at least some multiple nationals could thus face the prospect of being taxed both in Germany and in their other State of nationality.
States do not just conclude double taxation agreements, but also agreements to combat tax evasion. For example, in 2014 the United States and Germany concluded a so-called Foreign Account Tax Compliance Act (FACTA) Agreement which, inter alia, requires the German authorities to obtain certain information from German financial institutions on financial accounts held by US nationals and exchange that information with the US Internal Revenue Service. While the agreement applies to US nationals generally, in practice it mainly affects US-German dual nationals residing in Germany. The extensive reporting requirements under the FACTA have led many German financial institutions to close the accounts of US nationals or to refuse to open accounts for US nationals, including dual German and US nationals, meaning that German nationals were having difficulties maintaining a bank account in their own country.
Travel and visa restrictions
German multiple nationals may face travel and visa restrictions based on their other nationality. For example, on 27 January 2017 US President Donald Trump issued Executive Order No. 13769, blocking entry into the United States of nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This entry ban initially applied also to German multiple nationals who held one of the listed nationalities. Since 2021, persons with German and Cuban dual nationality also can no longer travel to the United States under the Visa Waiver Programme ESTA but require a US visa.
China does not recognise multiple nationality. Thus, if a Chinese child holds a German passport, the Chinese authorities will not issue a passport of the People’s Republic of China to the child or place a Chinese visa in the child’s German passport on the ground that this would amount to a nationality conflict. Children with dual German and Chinese nationality therefore need a special ‘Exit and Entry Permit’, which is valid for one departure and one readmission to China within three months of issuance.
In some Islamic countries, the right to determine a child’s place of residence belongs exclusively to the father. In these countries, minors, including those with dual nationality can leave the country only with the father’s written consent. In Algeria, for example, children with German and Algerian dual nationality need a so-called ‘Autorisation Paternelle de Voyage’, which can be issued by Algerian embassies or consulates general.
In other countries, children, including children with multiple nationality, need a permit to leave the country when travelling without a parent. Thus, minors with German and Spanish nationality need an exit permit from the Spanish national police when travelling from Spain to Germany without a parent.
Some States enjoin their nationals from leaving the country; others prohibit their nationals from visiting certain countries. Such prohibitions also apply to multiple nationals. For example, German-Lebanese dual nationals and dual nationals of other Arab origins may be prosecuted in Lebanon for visiting Israel even if they entered Israel on their German passport.
In order to enter and stay in Germany, foreigners generally require a residence title, for example, in the form of a visa. German nationals, on the other hand, have a right of residence and therefore may not be issued a residence title. This may cause problems in case of multiple nationals whose other State of nationality does not recognise multiple nationality. If the other State of nationality makes the right to leave the country and visit Germany subject to its national holding a German visa, the German authorities will either have to affix a stamp in the other State’s passport saying, ‘The passport holder has the right of residence in the Federal Republic of Germany’, or issue a ‘declaratory visa’ to their own national. German multiple nationals must be formally instructed that their foreign passport including stamp or visa is only valid for leaving their other State of nationality and not for entering Germany or other Schengen States.
Germany itself also creates certain travel restrictions for its multiple nationals. According to section 1(1) of the German Passport Act, German nationals are obliged to enter and leave Germany with a valid German passport. Multiple nationals may thus not travel on their other country’s passport to and from Germany. Failure to comply with this regulation is an administrative offense that can be punished with a fine of up to €5,000. A German multiple national’s other passport can generally not replace the German passport. An authentication of signature before a German diplomatic mission abroad always requires a German passport. Thus, the German embassy in Brazil stated on its website: ‘[N]o Brazilian identification documents can be accepted for dual nationals who hold both German and Brazilian nationality.’
Personal legal affairs
Multiple nationals may encounter legal challenges regarding their personal affairs. In private international law, which determines the applicable law in cases with a foreign element, a person’s nationality often serves as a criterion to determine which law applies, especially in family, inheritance, or naming matters. For example, Article 5(1) of the Introductory Act to the German Civil Code provides:
If referral is made to the law of a State of which a person is a national and where this person is a multiple national, the law applicable shall be that of the State with which the person has the closest connection, especially through his or her habitual residence or through the course of his or her life. If such person is also a German national, that legal status shall prevail.
However, the other States of nationality may also declare that their nationality shall prevail when determining the applicable law. In addition, States may apply different criteria when determining the dominant or effective nationality of a person for the purposes of private international law. Different laws may thus be applicable to the same situation. This may lead to a situation where the name of a German multiple national in German documents differs from their name in documents issued by the other State of nationality.
Divorces of German multiple nationals abroad require special recognition in Germany, while divorces of two foreigners in their home country do not.
Consular assistance
The area where multiple nationality has created most problems is consular assistance. The right to provide consular assistance to a ‘national’ in prison, custody or detention in another country is enshrined in Article 36(1)(c) of the Vienna Convention on Consular Relations. However, States do not possess the authority to extend consular assistance to multiple nationals who are within the territory of their other State of nationality. In case of persons with multiple nationality, each Sate of nationality has the right under international law to treat the person within its territory exclusively as its own national. For example, when in August 2021 a German-Iranian dual national was imprisoned in Iran, the Federal Foreign Office stated:
Ms. Taghavi is a dual national. From an Iranian perspective, dual nationals are Iranian citizens. That is why it is often not possible for us to provide consular assistance in such cases. But we tried to help Mrs. Taghavi as best as we could.
In case of multiple nationality, the State of nationality may also require that its nationals enter the country on their national passport. Should the passport expire during the visit or get lost, multiple nations may not leave the country on the passport of their other nationality. The German embassy in Russia, for example, advised dual German and Russian nationals on the expiry of their Russian passport during a visit to the country:
In this case … you must always wait for a new Russian passport to be issued in the Russian Federation. It is not possible to leave the country on the German passport or passport replacement document and the diplomatic mission has no way of obtaining your departure in any other way. It is therefore generally recommended that persons with dual nationality check the validity period of their travel documents before traveling and, if necessary, contact the Russian diplomatic mission responsible for their place of residence.
Policy and Practicality
Germany decided for political reasons to abandon the principle of avoiding multiple nationality. Whether allowing unrestricted multiple nationality will actually facilitate the better integration of immigrants or lead to a fragmentation of German nationality into different nationality groups with primary or secondary loyalties to other States remains to be seen. In any case, the premise of the 1963 Convention ‘that cases of multiple nationality are liable to cause difficulties’ still seems to be true, even if these difficulties are suppressed or downplayed in the political discourse.
Category: Nationality and statelessness
