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Naturalisation and International Terrorism under German Law - Marianne Wiedemann

I. Legal Framework on Loyalty to the Constitution of Applicants for Naturalisation
The loyalty to the Constitution of applicants for naturalisation was already a subject of the reform of the German nationality law in the year 1999. However, some regulations have been tightened after the terrorist attacks of September 11, 2001, in the United States of America.
Since the beginning of 2000 the right to naturalisation is granted upon the condition that the applicant confesses to the free and democratic constitutional structure of the German Basic Law and declares that he or she does not pursue or support any seditious efforts . In case he or she did support such efforts in the past, it is required that he or she presents a prima facie evidence for turning away from anticonstitutional movements . On the occasion of the request for naturalisation, the authority shall advise the applicant about the meaning of the declaration of loyalty and question if he or she has ever carried out any activities which might be an obstacle to naturalisation .
The right to naturalisation is excluded if actual grounds for a danger to national security by the pursuit or support of anticonstitutional efforts or extremist activities exist , regardless of whether the applicant makes the declaration of loyalty or not . By this protective clause concerning foreign extremism, activists of Kurdistan Workers‘ Party (PKK) or radical Islamics, for example, shall be prevented from naturalisation even if subversive movements cannot be proved for certain .
In order to check the loyalty to the Constitution when dealing with a naturalisation upon a discretionary decision, the same principles are applicable which have been developed for examining the loyalty of an applicant for jobs in civil service . Therefore, the authority, being entitled to certain discretionary powers, has to make a prognosis about the applicant‘s future loyalty to the Constitution .
II. The German States‘ Practice on the So-Called ‚Regelanfrage‘ to the State Office for the Protection of the Constitution
In order to check the applicant's loyalty, especially if he or she has a right to naturalisation, most of the German states (Laender) send a so-called ‚Regelanfrage‘ to the State Office for the Protection of the Constitution. That is to say that before every naturalisation there is an inquiry of the authorities responsible for the defence of the Constitution if there are any records on subversive activities of the applicant. This very common procedure is not laid down in federal law, but in administrative guidelines of the German states (Laender) . Accordingly, there are great differences in implementation.
Many German states send a so-called ‚Regelanfrage‘ to the State Office for the Protection of the Constitution whenever the applicant has completed his 16th year at the time of naturalisation . Other states make such an inquiry only in individual cases if there are clear indications for anticonstitutional efforts or extremist activities of the applicant which may arise from the records of the foreigners‘ registration office, the naturalisation documents or other sources . Some states, on the other hand, make a distinction in the applicant's state of origin by making a list of countries according to which a so-called ‚Regelanfrage‘ must be send to the State Office for the Protection of the Constitution before he or she is naturalised .
It is noticeable that some of the German states have introduced the so-called ‚Regelanfrage‘ to the State Office for the Protection of the Constitution as a reaction to the terrorist attacks of September 11, 2001, in the United States of America . Furthermore, some states which had made such inquiries before only in case of any indication for subversive activities, changed their practice afterwards by expanding the so-called ‚Regelanfrage‘ to all cases in which the applicant has reached the age of 16 at the time of naturalisation .
III. The Implications of the Act on Combatting International Terrorism
Concerning the federal law in Germany, the aliens law as well as the regulations on naturalisation did not remain unchanged after the tragic events of September 11, 2001. A few weeks later, the German Parliament (Bundestag) passed the Act on Combatting International Terrorism . This anti-terrorism law has changed, inter alia, the protective clause on preventing naturalisation of foreign extremists by including the support of international terrorism , establishing a retroactive effect to all applications for naturalisation made before . This means that naturalisation is excluded if there are clear indications that the applicant for naturalisation gives support or belongs to an organisation which supports international terrorism. These measures were taken in order to adapt the aliens and nationality law to this new and menacing situation, taking into account the particular danger of acts against the free and democratic constitutional structure of the German Basic Law or against the national security of the Federal Republic of Germany by support of violent terrorism .
Furthermore, the regulations on naturalisation by discretionary decision refer to another, new reason for expulsion which is, upon certain conditions, applicable if false or incomplete details are given about contacts with persons or organisations being suspected of supporting international terrorism, or if former stays in Germany or other states are concealed when being asked after on entry . If the applicant complies with this reason for expulsion, nationalisation upon discretion is excluded without further proof of any contacts to terrorism . The introduction of this regulation results from the experience that violent terrorists may partly legally enter into and reside in the Federal Republic of Germany .
IV. Conclusions
To sum up: It is doubtful whether the so-called ‚Regelanfrage‘ to the State Office for the Protection of the Constitution, which most of the German states practice to check the loyalty to the Constitution of the applicants for naturalisation, has proved to be sensible. This concerns, in particular, the relation between expenses and results. In most cases the so-called ‚Regelanfrage‘ seems to be unnecessary because the grounds leading to the exclusion of naturalisation are already obvious from the records of the foreigners‘ registration office or the naturalisation documents . In order to avoid a waste of time and money, the inquiries of the authorities responsible for the defence of the Constitution should be restricted to individual cases. At least the naturalisation authorities should refrain from the so-called ‚Regelanfrage‘ in evidently superfluous cases. Furthermore, for reasons of equal treatment it would be desirable if the German states acted more consistently when checking the loyalty to the Constitution of applicants for naturalisation.