Germany

The legal and policy framework on statelessness in Germany has both positive and negative aspects. It is state party to relevant human rights instruments but retains two key reservations to the 1954 Convention concerning travel documents and social security entitlements. Comprehensive population data is published online, including on statelessness, but without a dedicated procedure to identify and determine statelessness, estimates for the stateless population remain inaccurate. There are other administrative procedures through which statelessness can be identified and some case law on the determination of nationality status, however, without a proper mechanism in place, stateless people are not granted a protection status nor rights, unless also recognised as refugees.

The law establishes that a country of removal must be set prior to detaining, and procedural safeguards are in place to protect against arbitrary detention. However, Germany has entered into readmission agreements that enable stateless people to be removed to countries of former residence, without guarantees of protection. German nationality law prevents statelessness in some cases, but there is a legal residence requirement for children born stateless in Germany to acquire nationality, and problematic birth registration practices lead to inconsistencies in recording key data and access to birth certificates.

Last updated:

Apr 2019

Next scheduled update:

Mar 2020

Country expert(s):

Helena-Ulrike Marambio, ENS individual member

Additional resources

ASSESSMENT KEY

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+ SOMEWHAT POSITIVE

+-POSITIVE and NEGATIVE

- SOMEWHAT NEGATIVE

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ADDITIONAL INFO

NORMS & GOOD PRACTICE

International and Regional Instruments

Assesses whether countries are state party to the relevant international and regional instruments, including whether reservations have an impact on statelessness, and whether instruments are incorporated into domestic law. The four core statelessness treaties (1954 Convention relating to the Status of Stateless Persons; 1961 Convention on the Reduction of Statelessness; European Convention on Nationality; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession) carry more weight than other relevant human rights instruments in the assessment.

Germany is party to all the relevant regional and international instruments, except for the Convention on the Avoidance of Statelessness in Relation to State Succession, which it has signed but not ratified. Customary international law has direct effect in Germany, but international treaties must be incorporated into domestic law. Three of the core statelessness conventions have been incorporated; however, on incorporating the 1954 Convention, Germany reserved the right not to implement Article 27 on travel documents, and to apply Article 23 on access to social welfare only to stateless people who are also recognised as refugees under the 1951 Refugee Convention.

The 1954 Convention

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Germany has signed and ratified the 1954 Convention, but it retains two significant reservations. Customary international law has direct effect in Germany, but international treaty law must be incorporated into domestic law. When incorporating the 1954 Convention, Germany reserved the right not to apply Article 27 (Travel Documents), and to only apply Article 23 (Access to social welfare) to stateless people who are also refugees under the 1951 Refugee Convention.

The 1961 Convention

Germany is state party to the 1961 Convention and has entered no reservations. Its provisions are incorporated into domestic law.

Other Conventions

Germany is state party to the European Convention on Nationality but retains reservations permitting loss of nationality in certain circumstances.
Germany is state party to the European Convention on Human Rights, Convention on the Rights of the Child, International Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of all Forms of Discrimination Against Women, Convention against Torture, and Convention on the Elimination of All Forms of Racial Discrimination with no reservations.
Germany has signed and ratified the International Covenant on Civil and Political Rights but retains reservations relating to the criminal justice system that do not directly impact on statelessness.
Germany has signed but not ratified the Convention on the Avoidance of Statelessness in Relation to State Succession.
Germany is bound by the EU Returns Directive.

Statelessness Population Data

Examines the availability and sources of disaggregated population data on statelessness. Provides recent figures and assesses reliability of measures countries have in place to count stateless persons, including in the census, population registries and migration databases. Notes whether statelessness has been mapped in the country and whether there are effective measures in place to count stateless people in detention.

Population data in Germany is comprehensive, with the Federal Statistical Office publishing a wide range of statistics. The online Genesis Datenbank allows for searches on a range of topics including citizenship, legal basis for acquiring nationality, and types of residence permit held. A ‘stateless’ category is included but there are also overlapping categories, such as ‘unclear nationality’ and ‘Palestinian’. The Federal Office for Migration and Refugees regularly publishes asylum statistics, and parliament has undertaken inquiries into stateless refugees and asylum seekers, including on detention. However, there is no clear mechanism for identifying and determining statelessness in Germany, little awareness of the issue, and it is not clear how statelessness is recorded in administrative procedures. Detention data is not disaggregated by nationality status and as each federal state collects its own detention data, not all of it is aggregated and published at national level.

Availability and sources

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The census (last carried out in 2011) included the category 'stateless' (11,298), and two other categories that may include stateless people: ‘unclear nationality’ (130) and ‘without indications’ (35,548).
The Federal Statistical Office (Statistisches Bundesamt) publishes disaggregated data from the Central Register of Foreigners (Ausländerzentralregisters - AZR) and includes a ‘stateless’ category (24,650 people as of 31 December 2017).
Disaggregated data on naturalisation is also available in the Online Genesis Datenbank. In 2017, 782 stateless people naturalised as German.
The Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge - BAMF) publishes a range of statistical reports related to asylum and refugees. Its annual report from 2018 records 6,082 new asylum applications by people of ‘unknown nationality’, including 1,208 recorded as being ‘stateless’, 4,849 from people with ‘unclear’ (ungeklärt) nationality, and 25 ‘without indication’ (ohne Angabe).
UNHCR uses data from BAMF and the AZR to report a total of 13,458 stateless people in Germany in 2017.
Other information on stateless refugees and asylum seekers is reported by the Bundestag in response to parliamentary inquiries.
Figures that may include some stateless people are available for the number of people holding ‘Duldung’ (Toleration) permits (177,874 people on 31 October 2018).
Eurostat and publications by the European Migration Network (EMN) offer some additional data on residence permits and travel documents issued to stateless people in Germany.
Although statistical data in Germany is comprehensive, statelessness has not been surveyed or mapped in the German context. There are also issues with identification: authorities routinely categorise asylum seekers who arrive without passports as ‘stateless’ or ‘unknown nationality’ without verifying their actual nationality status. A large population of people with unclear nationality, ‘tolerated stay’, or irregular status, means that the actual number of stateless people in Germany is likely to be underrepresented in the statistics.

Stateless in detention data

There is little data available on stateless people in detention. Some detention data is published in the Genesis Datenbank, disaggregated by gender, but not nationality status.
Some data on stateless people or those with unknown nationality in detention appears in parliamentary inquiries published by the Bundestag, but this is not easily searchable.
Each federal state is responsible for detention and collects its own data but not all of it is aggregated and published at national level. Data on the number of people released from detention due to removal not available.

Statelessness Determination and Status

Identifies whether countries have a definition of a stateless person in national law that aligns with the 1954 Convention, and whether they have a dedicated statelessness determination (SDP) procedure; or, if not, whether there are other procedures or mechanisms by which statelessness can be identified and legal status determined. Countries are subdivided in four groups to enable comparison between those with an SDP in place, those with other administrative procedures, those with a status but no clear mechanism, and those without any status or mechanism. Where a procedure and status exist, these are assessed against norms and good practice, and the rights granted to recognised stateless persons are examined.

There is no dedicated statelessness determination procedure (SDP) in Germany, though statelessness may be identified during other administrative processes, such as refugee status determination or applications for residence or travel documents. However, none of these has determination of statelessness as an objective and there is no obligation to consider a statelessness claim, although some guidance has been developed by the administrative court on the determination of nationality status. The definition of a stateless person in German law is in line with the 1954 Convention, but without any residence rights attached to identification, protection is limited. In most cases, stateless people refused refugee protection are subject to removal with ‘tolerated stay’, which enables access to very basic assistance and restricted employment.

Definition of a stateless person

The definition of a stateless person in German law is in line with the 1954 Convention.

Existence of a dedicated SDP

There is no dedicated SDP in Germany, but statelessness may be identified through other administrative procedures including applications for travel documents, applications for or extensions of residence permits, applications for asylum, and ‘toleration’ (Duldung).

Alternative administrative procedures through which statelessness can be identified

There is no procedure in Germany with the objective of determining statelessness, but it can be clarified if it arises during another administrative procedure, such as an application for international protection under the responsibility of the Bundesamt (BAMF), or, if international protection is refused, under the responsibility of the local foreigners' office (Ausländerbehörde). The local foreigners' office may issue a form of residence permit with exceptional leave to remain known as ‘Duldung’ or 'tolerated stay', which effectively documents an unlawful stay because the person cannot be removed.
Statelessness can also be identified during an application for a travel document, or for other kinds of residence permit, such as family reunification or study, or if born stateless in Germany.

Access to procedures

There is no obligation in law on the authorities to consider a claim of statelessness.
There is no accessible public information on the specific steps stateless people should take to regularise their status. Available information relates mostly to asylum procedures. Instructions are provided on how to make an application for a travel document under the 1954 Convention at local level.
Where an examination to determine nationality status takes place it is undertaken by the local Ausländerbehörde in the applicant's place of residence.
There does not appear to be formal training for public officials on nationality or statelessness, though some training is offered on an ad hoc basis by interested individual experts or NGOs.
There does not appear to be cooperation between relevant actors for identifying and determining statelessness.

Assessment

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In all administrative procedures through which statelessness may be identified, the burden of proof is primarily on the applicant, who must cooperate and take all reasonable steps to secure any available documentation to prove their identity and origin. Failure to do so can result in penalties, such as reductions in social security entitlements. However, it is accepted that where facts are difficult to establish or evidence difficult to obtain, the burden of proof should be shared between the applicant and the competent authority.
In theory, only one standard of proof is in place in Germany: beyond reasonable doubt. In practice, judges seem to apply a less rigid approach in asylum and statelessness cases.
Although some guidance has been provided through the jurisprudence of the Federal Administrative Court on what constitutes proof of statelessness or nationality status, there is no clear, binding guidance on how to determine statelessness. In each federal state, the Ausländerbehörde follows its own guidelines based on General Administrative Regulations for the Nationality Act, which mentions stateless people (on acquisition of nationality, prevention of statelessness, vulnerable groups and loss of German nationality). The General Administrative Regulations for the Residence Act give some (vague) instructions on the procedures for collecting evidence and the obligation to participate in the procurement of documents.

Procedural protections

As stateless people are treated as any other foreigner under the Residence Act, they can obtain legal aid if they can demonstrate financial need. In court proceedings, they must also demonstrate sufficient prospects of success, which can present a barrier in practice.
To access legal aid, a person must be registered in the local registry, which constitutes a practical barrier for those with irregular status or 'tolerated stay' (although they are not excluded from access by law). The evidence required may not be easily accessible (for example, proof of income or address, or a tenancy agreement) or they may be afraid to provide it due to their insecure status or the fact that the courts responsible for granting an application for legal aid can inform the immigration authorities of the presence of people without legal stay. NGOs, a network of university law clinics, and faith-based organisations also provide legal assistance.
The official language for administrative procedures is German and applicants must seek and pay for an interpreter if required. In practice, friends or family usually support the applicant. Interviews are not mandatory but are permitted and in practice are often carried out.
All administrative decisions are given in writing with reasoning.

Stateless status and other forms of status

Residence rights are not granted to people in Germany on the basis of statelessness, but stateless people may be eligible for temporary residence if they cannot be removed within a stipulated timeframe. In practice, a temporary permit is often not granted within this timeframe, and people tend to remain with 'tolerated stay' and are often recorded as ‘nationality unclear'.
A person with tolerated stay may receive subsistence under the Asylum Seekers’ Benefit Act if they cannot meet their own subsistence, but they initially receive less than asylum seekers. After 15 months of uninterrupted stay they can access similar support, including healthcare, maternity services, and limited cash for basic personal needs. For the first three months, there is no right to work, from 4-15 months there is restricted access to the labour market, and after 48 months, there is unrestricted access to the labour market but not self-employment.

Detention

Analyses law, policy and practice relating to immigration detention generally, focusing in on protections in place to prevent the arbitrary detention of stateless people during removal and deportation procedures. Subthemes examine areas such as detention decision-making, whether alternatives to detention are legislated for and implemented, procedural safeguards such as time limits, judicial oversight and effective remedies, as well as protections on release and whether statelessness is considered juridically relevant in bilateral return and readmission agreements.

A range of different types of immigration detention are provided for in German law under different rules and procedures, which do include some protections against arbitrary detention. Of relevance to statelessness is the requirement that a country of removal is identified prior to detaining. However, even where nationality status has not been confirmed, readmission agreements allow for stateless people to be removed to places of former residence. The law provides for relatively strong procedural safeguards, including a time limit, ex officio reviews, and judicial oversight. However, on release from detention, tolerated stay is often granted, which maintains the obligation to leave the country and does not protect stateless people from re-detention.

Detention screening

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Different types of immigration detention are provided for in German law with different procedures and rules, though detention should only be used as a last resort on grounds that do not go beyond ECHR Article 5(1)(f).
Orders for detention pending deportation are regulated by the central government but implementation is a matter for each federal state and varies.
The Residence Act sets out the types and procedures for detention pending deportation, expulsion, and removal, and the conditions and duration of detention, with General Administrative Regulations providing further guidance. The Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction sets out the procedures for deprivation of liberty.
If deportation cannot be carried out due to difficulties obtaining a travel document or unwillingness of the destination country to receive the individual, or if the country of destination categorically refuses to issue travel documents within three months, detention to secure deportation cannot be ordered. However, even if the identity of the individual cannot be determined, but the country of destination is willing to receive them, deportation can be carried out.
In practice, an impossibility to deport is only established after several unsuccessful attempts.
Case law has established that the deportation of a stateless person can constitute inhumane treatment if the affected person may be at risk of significant and immediate mortal danger in the destination country, or if the person cannot pay for vital medical care.
The law stipulates that a country of removal must be identified prior to detention for removal or deportation, but this is not always strictly applied in practice.

Alternatives to detention

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The law provides for alternatives to detention at national level, which are transposed into guidelines and resolutions on federal state level. Alternatives must be considered prior to detention and these must be proportionate.
Alternatives include a) reporting requirements, b) geographic restrictions within a federal state or domicile restrictions, c) attendance at special counselling for returnees, and d) bail. Decisions on the application of alternatives are taken by the foreigners' office in the federal states and detention centre staff.
Alternatives are not subject to statutory time limits though the authorities must check regularly whether the conditions for alternatives pending deportation are upheld, or whether the obligation to leave the country may have ceased due to, for example, impossibility of removal.
NGOs have criticised current detention practice as 'unlawful' finding that deportation orders are made too hastily and courts lack due diligence in examining detention requests (in 30-50% of cases supported by one NGO, detainees were later released). A parliamentary inquiry found detention practices to be 'illegal' and 'too fast'.

Procedural safeguards

A maximum time limit on detention of 18 months is established in law.
The court must issue a copy of the application for detention to the individual concerned with the written reasons for detention (translated if necessary).
The law provides for detainees to receive information about their rights and obligations including their right to contact a legal representative, family members, consular authorities, and support organisations.
The authorities must examine and record ex officio at regular intervals whether the legal requirements for detention pending deportation are still in place and release the person if the reasons have ceased.
Individuals have access to a variety of remedies to challenge their detention: they can appeal the decision to detain to the local (Amtsgericht) or district court (Landgericht) within a month (detention order) or two weeks (temporary injunction). If the appeal is rejected, a further appeal can be lodged within a month to the Federal Court (Bundesgerichtshof). An appeal is also possible by applying to the local court to lift the detention order.
In practice, barriers to appeal have been reported including missed hearings, lack of interpreters, failure to translate the detention order, lack of administrative review of the person's file by the foreigners' office, and lack of free legal aid.
There are rules and procedures established in law and jurisprudence regulating the process of redocumentation and ascertaining nationality.
There is no specific regulation on access to free legal aid during the removal process, so practice varies between federal states: in some, it is only provided by civil society; in others, it is provided by the state. It is possible to apply for free legal aid to challenge deprivation of liberty under the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction, but only those in financial need, registered in the local registry, and with some prospect of success, are eligible.
Federal states are responsible for the assessment and identification of vulnerability, but statelessness is not considered a vulnerability factor. At national level, designated 'vulnerable groups' include minors under 16 years-old, elderly over 65 years-old, and pregnant women; federal states consider additional factors (disability, ill-health, ill-treatment).

Protection on release

If someone is released from detention due to deportation not being carried out, 'tolerated stay' is usually granted but this maintains the obligation to leave and does not protect from a new detention order being issued. If deportation is suspended for 18 months, a temporary residence permit may be granted.
Stateless people on tolerated stay face practical barriers to accessing travel documents.
A person with tolerated stay may receive subsistence under the Asylum Seekers’ Benefit Act if they cannot meet their own subsistence, but they initially receive less than asylum seekers. After 15 months of uninterrupted stay, they can access similar support, including healthcare, maternity services, and limited cash for basic personal needs. For the first three months, there is no right to work, from 4-15 months there is restricted access to the labour market with a work permit, and after 48 months, unrestricted access to the labour market is allowed but not self-employment.
Cumulative time spent in detention does not count towards the maximum time limit if a new detention order is issued.

Return and readmission agreements

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Statelessness is considered a juridically relevant fact, but not in every bilateral return or readmission agreement (of 32 bilateral return agreements, 4 do not address statelessness).
The multilateral return agreement between Belgium, Germany, France, Italy, Luxembourg, Netherlands and Poland also considers statelessness.
There is some evidence (from case law, parliamentary inquiries, NGO reports, and the media) that stateless people have been returned under such agreements to Romania and Kosovo, for example.

Prevention and Reduction

Assesses the adequacy of safeguards in nationality laws to prevent and reduce statelessness, including protections for otherwise stateless children born on the territory or to nationals abroad, foundlings and adopted children. Examines law, policy and practice on birth registration, including access to late birth registration, reduction measures taken by states to prevent statelessness among groups at high risk, and provisions regarding withdrawal of nationality.

Some safeguards to prevent statelessness are provided for in German law, including in the case of foundlings, adopted children and children born abroad to German nationals if they would otherwise be stateless (though registration is required). However, there is no full safeguard against statelessness for children born in Germany and there are practical barriers to birth registration for undocumented migrants, including that registry officials are required to report irregular migrants to the authorities. Provisions in German law require at least five years of continuous, legal residence, as well as evidence of statelessness in some cases, before stateless children born on the territory can acquire German nationality. All children born in Germany since January 2000, who have one parent with at least eight years legal and habitual residence, acquire German nationality automatically.

Stateless born on territory

There are safeguards in German nationality law to prevent statelessness for some children born in Germany, but 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, 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 law, 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 citizen 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.

Foundlings

There is a provision in German law to grant foundlings citizenship by birth.
For the foundling provision to apply, the child should be ‘helpless’, which is interpreted to mean that the child should not be able to provide any information about their origin. This can apply to older, minor children as well, who may not be able to express themselves or understand complex procedures.
The German legal provision on foundlings considers only the father’s identification to be relevant to the child’s nationality status. German citizenship can only be withdrawn from the child if the father can pass on his nationality and this does not result in statelessness.

Adoption

German nationality is lost by a German child adopted by foreign parents only if they acquire another nationality.
A child adopted by a German national acquires German citizenship if adopted as a minor (under 18yrs) and this extends to their descendants.

Ius sanguinis and discrimination

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A child born abroad to a German national also born abroad before December 1999 and resident abroad does not automatically acquire German nationality unless they would otherwise be stateless. Registration of the birth with the German authorities is required.
In practice, an unregistered child of German nationals born abroad would still have a right to enter and reside in Germany with their German parents, and would be able to access facilitated naturalisation procedures.

Access to birth registration

The law stipulates that children must be registered immediately. In the case of births in hospitals or other institutions (including detention centres) the institution is obliged to notify of the birth. The birth must be communicated to the local registry office (Standesamt) where the child was born, either by the parent, any person who was present at or informed about the birth, and the relevant institutions.
To register a birth, married parents must submit birth certificates and a marriage certificate or certified copy of their marriage register. Unmarried parents must submit the birth certificate of the mother and declaration of paternity, birth certificate of the father, and custody declarations (if available). A recognised passport or other documents can replace the parents' birth certificates, but the registry office in charge decides on a case-by-case basis which documents may be accepted.
By law, a child can be registered if parents' stay in the country is irregular, but registry officials have a duty to report their presence to the authorities, which constitutes a barrier to registration.
If parents cannot present all the required documentation, the civil registrar can take an oath, but in practice, this option is little-used and may vary on a case-by-case basis depending on the local registrar.
In cases where at least one parent cannot present the required documentation, practice varies as to whether only the mother or both parents are registered, and parents receive an extract from the birth register rather than a birth certificate, which states that the child’s identity cannot be established. Although the extract is an official document, its value as a form of legal identification is disputed in practice, which may pose barriers to accessing certain rights later in life, or to acquiring nationality (especially if the identity of the parents is unclear).
There are credible reports to parliament, by civil society, and the Committee on the Rights of the Child of refugees and undocumented migrants facing barriers to birth registration due to missing documents or fear of being deported. If undocumented migrants do not give birth in hospital due to a fear of the authorities, the birth would not be automatically registered.

Late Birth registration

Late birth registration is possible in law but requires habitual residence and a travel document, which presents barriers in practice.
There is a fee for late registration of a birth abroad, which varies between federal states (e.g. 40 Euros in Greifswald and 60 Euros in Berlin); and other related fees may apply.

Reduction

There is no information available about any campaigns to promote civil registration or any other measures by the Government to reduce the risk of statelessness.
The German Institute for Human Rights and other NGOs initiated a campaign in June 2016 to promote birth registration among refugees with information available in different languages.
There are reports of risks that children of undocumented migrants, refugees, and people with unclear nationality remain unregistered.

Withdrawal of nationality

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Withdrawal of nationality is permitted even when it results in statelessness where naturalisation or permission to retain German nationality has been acquired by deception.
Nationality can be lost in other cases including where someone applies for another nationality, enlists in the armed forces of another country without permission, and adoption, but not where it would result in statelessness.
There have been cases of withdrawal of nationality on the grounds of intentional deception.
The competent authority for withdrawal of German nationality is the nationality authority in each federal state or the Federal Office of Administration abroad. There is a time limit on withdrawal procedures and the burden of proof lies with the authority.