Germany’s Citizenship Policy in Comparative Perspective

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GERMANY’S CITIZENSHIP POLICY IN COMPARATIVE PERSPECTIVE Marc Morjé Howard Government, Georgetown University

A BSTRACT This article puts the 1999 German Nationality Act into a comparative European perspective. By applying a common measure of the relative restrictiveness or inclusiveness of a country’s citizenship policy to the countries of the EU-15 at two different time periods, it provides an analysis of change both within and across countries. From this perspective, Germany has clearly moved “up” from having the single most restrictive law before the 1999 reform to a more moderate policy today. Yet Germany’s major “liberalizing change” was also tempered by a significant “restrictive backlash.” The German case therefore provides support for a broader theoretical argument about the potential for mobilized anti-immigrant public opinion to nullify the liberalization that often occurs within the realm of elite politics.

K EYWORDS citizenship; nationality; immigration; public mobilization; far right; Europe; Germany

For many decades, the Federal Republic of Germany (FRG) was held to

have one of the most exclusive and restrictive citizenship policies within Europe and the entire industrialized world. The liberalizing thrust of the 1999 Nationality Act thus marks an important shift in German citizenship policy. But how has this reform changed Germany’s standing when viewed from a comparative European perspective? This article addresses this question by placing Germany’s citizenship policy in a broader context. It starts by introducing a comparative measure of a country’s citizenship policy, which applies common methodological criteria to the countries of the EU-15 at two different time periods.

German Politics and Society, Issue 101 Vol. 30, No. 1 Spring 2012 doi:10.3167/gps.2012.300103

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This allows for an analysis of both within country change over time—a particularly important question for Germany, given the reform of a decade ago—and across the EU-15 countries from the 1980s to the present. After showing that Germany has moved “up” from having the single most restrictive law before the 1999 reform to a more moderate policy today, the article then focuses on the dual dynamic of Germany’s “liberalizing change” and its subsequent “restrictive backlash.” My analysis highlights a wider argument about the potential for the mobilization of anti-immigrant public opinion to nullify or restrict the liberalization that often occurs when the reform takes place within the realm of elite politics.

Measuring Citizenship across Europe: The Citizenship Policy Index In order to place Germany in comparative perspective, and also to evaluate the extent of change realized by the 1999 law, it is important to use a common measure across time and space. This article makes use of the Citizenship Policy Index (CPI) developed and applied in other published work.1 The CPI consists of a simple addition of the following three factors: 1) whether a country grants jus soli—i.e., whether children of non-citizens who are born in a country’s territory can acquire that country’s citizenship (either immediately at birth or automatically after a certain number of years of residence); 2) the minimum length of its residency requirement for naturalization (for both immigrants themselves and immigrant spouses who are married to citizens); and 3) whether or not naturalized immigrants are allowed to hold dual citizenship. Although space limitations preclude a full description and presentation of all the scores, each component is scored on a 0-2 scale—each consisting of several sub-components, with relatively finegrained distinctions—yielding a 0-6 point range for the total index.2 Overall, the CPI provides a relatively refined and accurate index that allows us to assess and compare the citizenship policies of the EU-15 countries. An analysis of change over the past few decades requires starting with two clearly defined points in time as benchmarks. One, which I call “the 1980s,” can serve as a general proxy for previous laws and traditions. The second point in time is the contemporary period, based on the existing laws and practices at the end of 2008. The comparison of the two time periods—using the same methodological criteria—allows us to place Germany in comparative perspective at two different time periods, both before and after the 1999 reform. •••

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Figure 1: Citizenship Policy Index, 1980s and 2008

Source: Marc Morjé Howard, The Politics of Citizenship in Europe (New York, 2009).

Figure 1 presents the overall CPI scores in both the 1980s and 2008. Looking at the full EU-15, the figure shows that most of the countries displayed relatively small changes of less than 1 point during the period of interest, but six countries saw their CPI scores liberalize considerably. The Netherlands increased by 1.5, Luxembourg by 1.75, Germany by just over 2 points, Portugal and Finland by more than 2.5 points, and Sweden by 3.75 points. The only country that moved considerably in a negative direction was Denmark, which dropped from 1.43 to 0. Figure 1 also groups the EU-15 countries into three particular types: the bottom five countries have displayed “restrictive continuity,” the next six countries represent “liberalizing change” since the 1980s, and the top four countries can be considered “historically liberal.”

Germany’s Citizenship Policy in Comparative and Historical Perspective According to the CPI scores, Germany was the single most restrictive country in the 1980s. It had no provisions for jus soli, the residency requirement for naturalization was fifteen years, and it had did not allow immigrants to hold dual citizenship (other than in exceptional circumstances). Moreover, its naturalization rates were among the very lowest in Europe. These scores confirm the general assessment of Germany’s histor•••

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ically restrictive citizenship policy. Yet Germany’s placement on Figure 1 provides a very different perspective on the contemporary period. Indeed, Germany certainly falls within the category of states experiencing “liberalizing change,” having increased from a 0 to a 2.04. Table 1 provides a closer look at the individual elements of Germany’s CPI scores in both the 1980s and 2008. The table shows that Germany’s score increased on each of the three components, as it now allows for a partial version of jus soli (with some restrictions based on the residence status of the parents), the residency requirement for naturalization has been reduced to eight years, and dual citizenship is now permitted for children (with the Optionsmodell) and often tolerated informally for immigrants, even though still formally forbidden.3 Table 1: Germany’s CPI Scores, 1980s and 2008 Time Period

1980s 2008

Jus Soli (0-2)

Naturalization Requirements (0-2)

Dual Citizenship for Immigrants (0-2)

Overall CPI SCORE (0-6)

0.00 0.75

0.00 0.54

0.00 0.75

0.00 2.04

Source: Marc Morjé Howard, The Politics of Citizenship in Europe (New York, 2009).

In other words, unlike in the 1980s, Germany no longer has a restrictive citizenship policy when compared to the full set of EU-15 countries, and it can now be classified in the “medium” category. That said, while certainly constituting a liberalization—and a major one given the weight of history that was regularly placed upon Germany for the perpetuation of its 1913 law—the change in Germany did not go as far as that of many of the other countries (Sweden, Portugal, Finland, the Netherlands, and Luxembourg) that liberalized their citizenship laws over the past two decades. Germany now ranks at the bottom of the “median” group of countries. Not only did the 1999 reform not quite match the new standards reached by the other countries of liberalizing change, it also did not go nearly as far as the initial proposal made by the Schröder government upon its election in 1998. Gerhard Schröder had come into office promising a sweeping change that would drastically open up Germany’s citizenship law, including full dual citizenship rights for naturalizing immigrants. But after a contentious political battle, during which the issue of citizenship left the quiet realm of elite and party politics and mobilized a population that proved to be staunchly opposed to dual citizenship, the government back-pedaled and settled on a watered-down compromise. The following two sections synthesize the two elements of what I refer to as “liberalizing •••

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change with a restrictive backlash,” before drawing some broader conclusions that derive from the German case.

Germany’s Liberalizing Change Through the end of the Cold War, the postwar Federal Republic had maintained its 1913 citizenship law for two main reasons: first, hundreds of thousands of “ethnic German” settlers (Aussiedler) scattered around Eastern Europe faced significant postwar recriminations, and allowing them to return to Germany was considered a basic and fundamental human right; second, East German citizens who managed to leave communist East Germany (Übersiedler) were automatically granted West German citizenship upon arrival in the FRG, a policy that helped to put pressure on the East German regime. After German unification in 1990 and the collapse of the Soviet bloc in 1991, however, both of these reasons for maintaining such a broad “ethnic” interpretation of citizenship became outdated and impractical. Meanwhile, it became increasingly clear that Germany had become the permanent home of ever-more foreign residents whose entire families, including children and grandchildren, had come of age in Germany. The striking contrast between German-born Turks (speaking fluent German and often studying and working productively in Germany, yet not being granted citizenship) and the large numbers of “ethnic Germans” (arriving with little to no knowledge of German language or culture, yet being granted citizenship automatically) was becoming more and more difficult to justify, either morally or economically. As a result, by the mid1990s, Germany’s citizenship policy appeared increasingly anachronistic and offensive. Throughout the 1990s, a variety of different pressures for liberalization exerted their influence on Germany’s citizenship law. One reason is that the outdated 1913 law created considerable international embarrassment for Germany. More importantly, given the influx of long-term guest workers and their families since the 1970s, and of asylum seekers in the early 1990s, Germany found itself with a massive foreign population that could no longer simply be ignored. Moreover, the influence of the Federal Constitutional Court and the strategic calculations of political elites and parties also contributed to the sense that citizenship liberalization was both necessary and likely. The most obvious turning point for the liberalization of Germany’s citizenship law occurred on 27 September 1998, when the national elections resulted in the victory of the Social Democrats (SPD) and Greens, who •••

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ousted the long-time governing coalition of Christian Democrats (CDU/CSU) and Free Democrats (FDP). Yet the groundwork for this reform had been set up over the preceding sixteen years by actors from all four of these political parties. Indeed, despite their disagreements about how to proceed, the parties all recognized that the status quo of the late 1980s and early 1990s— both in terms of the unwarranted obstacles faced by long-term immigrants and the excessive ease with which “ethnic Germans” were acquiring citizenship after the end of the Cold War—was unsustainable. Intense and protracted political debates about Germany’s citizenship policy emerged over the course of the 1980s, and they accelerated in the 1990s, involving all of the main political parties, along with legal experts and academics. Within the closed domain of elite discussions, several key factors became increasingly influential: the opposition SPD and Greens exerted steady and firm pressure on the government; a small but growing number of liberals within the CDU supported moderate reform; the FDP, the “junior partner” in the coalition government, supported change; and Friedrich Zimmermann, a staunchly anti-immigrant CSU Interior Minister, was replaced by a more open-minded and pragmatic successor, Wolfgang Schäuble. These pressures led to several important reforms in 1990 and 1993, which loosened the criteria for naturalization. But, with a few exceptions, these discussions remained at the elite level, with little popular involvement. As one analyst writes, “there existed no significant pressure for an alteration of policy from the electorate or from interest groups; indeed, the advocacy of inclusive policy positions in the 1980s frequently constituted a political risk.”4 In fact, the political parties seem to have made a conscious effort to “avoid any public reaction by keeping the matter out of public debate.”5 The major impetus for change occurred in September 1998, when the SPD and Greens won the national elections and formed a coalition government under the leadership of Chancellor Schröder. Although citizenship reform “was not a central issue in the 1998 campaign,”6 Schröder pledged to press ahead quickly with a fundamental change in the citizenship law immediately upon taking office. His government proposed an ambitious plan to establish jus soli for foreign children born on German soil, to ease naturalization rights for foreigners residing in Germany, and—most importantly and most controversially—to allow foreigners to hold dual citizenship by acquiring German citizenship while maintaining their current nationality as well. Schröder did not shy away from the resulting controversy, and in a major speech to the Bundestag on 10 November 1998, he stated boldly and with confidence that he would pass this citizenship reform. •••

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Shortly after the elections, the SPD-Green government seemed determined to bring about lasting citizenship reform, and leaders of both parties were extremely confident that they would succeed. As Randall Hansen and Jobst Koehler write: “The government had just won a landslide victory and enjoyed a comfortable majority in both chambers, whereas the opposition was still reeling from the (by German standards) crushing defeat…. Thus, the government considered the move largely uncontroversial.”7 Indeed, claiming that citizenship liberalization was “long overdue,” the new Interior Minister Otto Schily (SPD) predicted that the changes would be approved smoothly and quickly in early 1999.8 What Schily and his colleagues did not expect, however, was that the issue of citizenship was about to leave the realm of elite discussions and enter an entirely different world of populist politics, where public opinion and mobilization would develop into a decisive factor—against liberalization. Indeed, the liberalization that occurred over the 1980s and 1990s was notable for being quiet and elite-led. Politicians from the various parties had intentionally sought not to bring the issue into the public arena, for fear that anti-immigrant sentiment could escalate and play into the hands of the radical right, thereby threatening Germany’s political stability and its international reputation. But Schröder’s bold public pronouncement in the aftermath of a bitter election campaign shattered that elite consensus, ultimately damaging the chance of implementing his full proposal.

Germany’s Restrictive Backlash Once Schröder made his proposal public, the debate over the citizenship law quickly left the inner sanctum of the Bundestag and the closed arena of parliamentary discussions. Parties on both sides of the proposal began openly to court public opinion. This was risky territory for those in favor of citizenship liberalization, since many Germans held anti-immigrant views, especially on the issue of dual citizenship.9 As Murray notes, referring to the 1980s and referencing the influential weekly Der Spiegel: “Opinion polls throughout the decade showed that the Germany public maintained negative attitudes toward foreigners residing in the Federal Republic. Even in 1989, when liberal voices among political parties were gaining strength, polls continued to demonstrate an ‘alarmingly stable and negative’ attitude toward immigrants.”10 Before 1998, even the center-right parties had avoided exploiting the anti-foreigner sentiment for fear of stirring up right-wing extremism (and thereby damaging Germany’s reputa•••

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tion abroad). Once they became members of the opposition in 1998, however, and they decided to rouse up these latent tendencies in order to stop a political process they could no longer directly control.11 For several months, the CDU/CSU made sweeping public condemnations of the SPD-Green proposal, arguing in quite sensationalist terms that, for example, “foreigners will have a huge natural advantage over Germans” and that “Germany will be transformed into a land of immigration, a land of unlimited immigration.”12 When the government formally introduced its citizenship reform bill on 13 January 1999, Schröder seemed to give ground slightly, probably in reaction to the months of CDU/CSU attacks and their effectiveness with the public, stating: “I stress: I do not want dual citizenship, but I will accept it in order to serve the goal of integration.”13 But, the CDU/CSU continued to hammer away at the proposal for dual citizenship. Wolfgang Schäuble, then head of the CDU, made the argument that “regularly allowing dual citizenship is poison to integration as well as to domestic order.”14 In short, the CDU/CSU argued that by granting dual citizenship, Germany would be allowing its new citizens to have divided loyalties, while not encouraging them to integrate into German society. Those further on the right even suggested that this could result in possible terrorist links to their “other” countries at “home.” Up until this point, there was still a disconnect between public opinion—which was latently, and now increasingly self-consciously, anti-immigrant—and the political debates among the parties. But this changed rather dramatically in the run-up to the February 1999 regional elections to the state parliament in Hesse. The CDU /CSU made a crucial and unprecedented strategic move: “rather than fighting the government in parliament, where they were a minority in both houses, they took the debate to the streets.”15 First, Edmund Stoiber, the arch-conservative chairman of the CSU and Bavarian prime minister, called for a national plebiscite on dual citizenship, which was a strategy designed to embarrass the government, which had promised to encourage greater citizen participation than its predecessor had allowed. But the plebiscite idea was provocative in a country where—as a reaction to its fascist past—the centrist parties had intentionally avoided direct democracy as a means of shielding the political system from “excessive” popular will and its potentially anti-democratic tendencies. As a result, in his capacity as party chairman Schäuble reached a compromise solution within the CDU /CSU opposition, as he decided to endorse a signature campaign against dual citizenship. Moreover, the opposition decided to focus the petition campaign on the upcoming Landtag elections in Hesse, which had traditionally been a •••

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Social Democratic stronghold. If the CDU were to pull off this electoral upset, it would not only send a strong symbolic message that the German people were on their side, it would also take away the Red-Green coalition’s majority in the Bundesrat, effectively granting the Union parties a veto on all policies requiring the approval of the upper house of parliament, the citizenship reform included. Since at that point it still looked unlikely that the SPD would lose its dominance in Hesse, the SPD and especially the Greens—having just entered a national government for the first time—neglected the election campaign in Hesse. Meanwhile, the CDU’s Roland Koch agreed to lead the charge in the petition campaign as part of his long shot bid to bring his party to victory, and thereby become the regional prime minister. The signature campaign turned out to be even more effective than even its originators and strongest supporters could have anticipated. Although it only began on 4 January 1999, within less than six weeks the petition had gathered over five million signatures.16 And the CDU’s entire campaign in Hesse was based on its opposition to the proposed citizenship law.17 Moreover, public opinion surveys showed that increasing numbers of Germans were opposed to the concept of dual citizenship, up from 57 percent in December 1998 to 63 percent in January 1999.18 Finally, this extraordinary display of public mobilization led to the stunning defeat of the SPDGreen government in Hesse, thus ensuring that the national government no longer had the political means to pass its own proposal without engaging in significant negotiations and horse trading with opposition parties. The massive mobilization of the CDU petition drive and the Hesse defeat demoralized the SPD,19 which suddenly and without much hesitation dropped its once-strident plans for reform, and instead sought a much watered-down compromise with the FDP. The FDP’s position—crafted during meetings with several liberal members of the CDU in the mid1990s— was in support of liberalizing citizenship requirements, but remained opposed to allowing dual citizenship. As a result, after the Hesse debacle, the SPD-Greens faced the dilemma of either abandoning the issue altogether or saving face through a compromise shaped in consultation with the FDP. In other words, while the liberalization process had proceeded for a period of nearly two decades, it did so quietly, at the elite level, and with little public involvement. Nevertheless, once the CDU/CSU made the strategic decision to politicize the issue and to mobilize what had always been a latently anti-immigrant sentiment by focusing the campaign for the Hesse Landtag elections on the issue of opposition to dual citizenship, the terms •••

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changed. As a result of this popular mobilization, the process of liberalization was abruptly and stunningly halted, leading to a backlash of restrictive measures that were amended to the government’s original proposal. In short, the mobilization of a previously latent anti-immigrant public essentially “trumped” the long-standing and elite-driven process of liberalization.

Conclusion: The Politics of Citizenship in Germany and Beyond Following decades of quiet negotiations and proposals, these two dramatic and public political swings—the triumphant entry of the SPD-Green government in September 1998 and the noisy backlash of the CDU petition campaign in February 1999—took place within less than five months. During this time, the issue of citizenship became more public than both sides were comfortable with, and they therefore retreated to the more familiar and comfortable confines of elite-level negotiations in order to reach a face-saving compromise for all sides. The result was the German Nationality Act of 1999, which was proposed in March 1999 by the SPD-Green government, supported by the FDP, and tolerated by elements of the CDU /CSU. The law was approved easily in May 1999, and it took effect on 1 January 2000. The details of Germany’s new law have been recounted elsewhere, and need not be repeated here.20 In short, despite the partial liberalization of dual citizenship in policy and practice, the new law contains explicit restrictions on dual citizenship for immigrants—both for naturalizing adults and for children who acquire German citizenship via jus soli. In comparison to the majority of European countries that have no such restrictions on dual citizenship, and especially in comparison to the Schröder government’s lofty ambitions for establishing full dual citizenship, the new law clearly falls short. Overall, the new policy represents a significant liberalization of the earlier law. Certainly, a reduced residency requirement and the right to citizenship by jus soli facilitate the process by which foreigners can acquire full rights as German citizens. This represents a remarkable change after decades of exclusive reliance on ethnic criteria. Yet the prohibition of dual citizenship makes the liberalization only partial and it remains to be seen whether Germany will truly open up its conception of who can be German. What are the broader conclusions that can be drawn from the German case? As occurred in the other five cases of liberalizing change shown on Figure 1, the gradual liberalization that took place in Germany over the •••

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course of the 1990s was the result of elite politics that did not include widespread consultations with, or mobilization of, the general public. In the German case, this avoidance was intentional, as all of the mainstream parties did not want to fan the flames of the far right by involving a public that has long had latent anti-immigrant sentiments. But after the 1998 elections brought to power a left-of-center SPD/Green government that proposed a rather sweeping and ambitious project to liberalize Germany’s citizenship laws, the center-right CDU /CSU parties decided to flout this taboo by taking the issue of dual citizenship “to the people” by means of a petition campaign against the proposed law. The result, as in three of the countries of “restrictive continuity”—Austria, Denmark, and Italy—was the sudden and overwhelming mobilization of a popular will that was clearly and firmly anti-immigrant. The political outcome was the shocking loss of the new government’s majority in the upper house, which led to a watered-down compromise law that has only partially changed the situation for many foreigners in Germany, and whose longer-term consequences may not be clear for quite some time. In other words, liberalization was occurring in Germany—as in Finland, Luxembourg, the Netherlands, Portugal, and Sweden—as long as public mobilization was not “activated.” As soon as the public was involved, however, the full extent of liberalization was blocked, and additional restrictive features were inserted. The new German citizenship law still represents a considerable liberalizing change when compared to its infamous predecessor from 1913, but the politics surrounding that reform process help to illustrate the tremendous power of the mobilization of anti-immigrant sentiment. This insight may be of use as we look to other traditionally restrictive European states’ efforts to liberalize their citizenship policies. Will reform emerge incrementally, by means of quiet negotiations among elites, or will the process become politicized in a way that mobilizes the latent but widespread xenophobia that characterizes most European societies? MARC MORJÉ HOWARD is a Professor of Government at Georgetown University. His research addresses a variety of topics related to democracy and democratization, including civil society, citizenship, hybrid regimes, right-wing extremism, and public opinion. He is the author of two awardwinning books, The Weakness of Civil Society in Post-Communist Europe (Cambridge, 2003) and The Politics of Citizenship in Europe (Cambridge, 2009). He has also published articles in over a dozen academic journals, including the American Journal of Political Science, the British Journal of Political •••

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Science, Perspectives on Politics, and the Journal of Democracy. His first-ever academic article, entitled “An East German Ethnicity? Understanding the New Division of Unified Germany,” appeared in the Winter 1995 issue of German Politics and Society.

Notes 1. See Marc Morjé Howard, The Politics of Citizenship in Europe (New York, 2009).Whereas earlier work developed a CPI based on a coding of citizenship laws focusing on a few key elements of citizenship policy, the “new” CPI developed here includes three specific improvements: 1) it incorporates a recent development that most studies of comparative citizenship have not yet dealt with systematically, namely the new language and civic integration requirements that a number of countries have mandated as a condition for naturalization; 2) it makes adjustments based on each country’s naturalization rates; 3) it draws on the tremendous research—by individual country experts, within a common methodological framework—that went into a major project known as NATAC. The NATAC project, also called the “The acquisition of nationality in EU Member States: rules, practices and quantitative developments,” was directed by Rainer Bauböck and funded primarily by the European Commission. The NATAC findings have been published by Amsterdam University Press in two volumes, which provide the most detailed, comprehensive, and systematic analyses of citizenship policies in the EU-15 that exist to date. See Rainer Bauböck, Eva Ersbøll, Kees Groenendijk, and Harald Waldrauch, eds., Acquisition and Loss of Nationality (Amsterdam, 2006), 2 volumes. 2. For more information on the details of the coding analysis, see Howard (see note 1), Ch. 1. 3. For a more detailed explanation of the individual coding scores and adjustments, see ibid., Appendix I. 4. Laura Murray, “Einwanderungsland Bundesrepublik Deutschland? Explaining the Evolving Positions of German Political Parties on Citizenship Policy,” Germany Politics and Society 33 (1994): 24. 5. Randall Hansen and Jobst Koehler, “Issue Definition, Political Discourse and the Politics of Nationality Reform in France and Germany,” European Journal of Political Research 44, no. 5 (2005): 637. 6. Merih Anil, “No More Foreigners? The Remaking of German Naturalization and Citizenship Law, 1990-2000,” Dialectical Anthropology 29, no. 4 (2005): 462. 7. Hansen and Koehler (see note 5), 638. 8. Migration News 5, no. 11 (November 1998). 9. Simon Green, “Between Ideology and Pragmatism: The Politics of Dual Nationality in Germany,” International Migration Review 39, no. 4 (2005):944. 10. Murray (see note 4), 28. 11. For a somewhat different perspective, which emphasizes that this politicization began in the early 1990s and was driven by the right wing of the CDU /CSU, see James D. Ingram and Triadafilos Triadafilopoulos, “Rights, Norms, and Politics: The Case of German Citizenship Reform,” Social Research 77, no. 1 (2010). 12. Migration News (see note 8). 13. Migration News 6, no. 2 (February 1999).

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Robert Birnbaum, “Schäuble: Doppelte Staatsbürgerschaft Ist Gift Für Die Integration,” Der Tagesspiegel, 4 January 1999. 15. Hansen and Koehler (see note 5), 638. 16. Ibid., 641. 17. See Simon Green, The Politics of Exclusion: Institutions and Immigration Policy in Contemporary Germany (Manchester, 2004), 97-103. 18. Migration News (see note 13). 19. As the outgoing state governor Hans Eichel (SPD) put it, “the double citizenship law issue became so emotional that it mobilized the opposition.” Migration News 6, no. 3 (March 1999). 20. See, among many others, Howard (see note 1), Ch. 6; Green (see note 17); Green (see note 9).

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