Does derivation of US citizenship through parents' naturalization cause loss of German citizenship?

Question

This question is about eligibility for German/US dual citizenship when a minor acquires US citizenship at the time that his parents naturalize.

Suppose a child is born outside of the United States to foreign parents and is at the time of his birth a German citizen by descent. The child's parents naturalize in the United States while the child is still a minor.

According to section 321 of the Immigration and Nationality Act of 1952 (INA 321), the child "automatically" receives US citizenship:

Child born outside of United States of alien parent; conditions under which citizenship automatically acquired. Sec. 321. (a) A child born outside of the United States of alien parents, ..., becomes a citizen of the United States upon fulfillment of the following conditions: (1) The naturalization of both parents; or [other criteria].

(This section of the Immigration and Nationality Act of 1952 was amended by the Child Citizenship Act of 2000; the major difference going forward is that now the child receives citizenship automatically when one of the parents naturalizes; previously, citizenship was not awarded until both of the parents naturalized.)

Now, this question concerns loss of German citizenship in the era of the mid-20th-century. German citizenship is generally lost when an individual naturalizes in another country. Section 25 of the German Nationality Act (as amended many times since its original passage in 1913) reads:

(1) A German shall lose his or her citizenship upon acquiring foreign citizenship where such acquisition results from an application filed by the German concerned or his or her legal representative,

For completeness, I looked up the English translation of the original version of the German Imperial and State Citizenship Law of July 22, 1913. Section 25 of that law reads:

A German who has neither his residence nor permanent abode in Germany loses his citizenship on acquiring foreign citizenship, provided the foreign citizenship is acquired as a result of his own application therefor or the application of the husband or legal representative, only when the conditions exist under which expatriation may be applied for according to §§ 18 and 19."

Of those, §19 is relevant:

The expatriation of a person who is under parental tutelage or guardianship may be applied for only by the legal representative and only with the consent of the German court having jurisdiction in guardianship matters. ... The consent of the court having jurisdiction in guardianship matters is not necessary if the father or mother apply for expatriation for themselves and by authority of parental tutelage simultaneously for the child, ... .

The question here is, for the purposes of German nationality law, did the child's US nationality arise "from an application filed by the German concerned or his or her legal representative" (in this case, his parents)? The quoted passage of the 1913 law specifically calls out the case of a father applying for foreign naturalization of himself and his child simultaneously as resulting in loss of German citizenship for the child.

Or did the child acquire US citizenship "automatically" (INA 321 does contain that magic word) as a sort of side-effect of his parents naturalization?

Is there any precedent on whether this child retains a claim to German nationality?

Answer 1

Based on the German Embassy information quoted further down, the chances are high that you have not lost your German citizenship.

To determine this property, you must apply for a Staatsangehörigkeitsausweis, for which the details can be found here:

Feststellung der deutschen Staatsangehörigkeit (Staatsangehörigkeitsausweis)

Before you apply, please read the information listed below on the acquisition and loss of German citizenship and have an Embassy representative abroad advise you on whether an assessment procedure is necessary. Please fill in the following questionnaire:
Fragebogen zur Staatsangehörigkeit (Pdf in English)
If your foreign representative has recommended you to perform a finding process, please read the leaflet of the Federal Administration and to fill out filling and pre-assess your application as follows:
...

As the instructions state fill out the form, collect suggested documents (where possible, at least yours and your parents) and make an appointment with them.

They will advise you if a formel application is worth while or not.

If yes, make the application.

Either a positive or negative Certificate will be issued.

If positive, that Certificate can be used to apply for a Passport.

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Verlust der deutschen Staatsangehörigkeit

Loss due to acceptance of a foreign nationality

The most common reason for loss of German citizenship is the acquisition of a foreign nationality at your own request (for detailed information see the leaflet of the Federal Office of Administration Cologne.

For Germans resident in the US who have acquired US citizenship on their own request, this means: With the acquisition of US citizenship, German citizenship is regularly lost unless a retention permit has been obtained. Children born after naturalization no longer acquire German citizenship from the formerly German parent.

Conversely, these children have regularly acquired German citizenship at birth before the naturalization date of the parent.

The loss of German citizenship, on the other hand, does not occur regularly when minor children are automatically naturalized through their parents. As a rule, this so-called extension acquisition does not result in a loss of citizenship.

The administration instructions for exceptions to § 25(1)

• Loss of German citizenship

(page 44 of pdf) is where this constilation is meantioned.

In cases where foreign law provides for the impersonal extension of the acquisition of foreign nationality to persons who have not filed an application themselves (in particular when minor children are involved), the application for the application referred to in subsection (1) shall not apply even if the persons involved in the acquisition of foreign nationality which naturalization extends have been included in the naturalization application of the naturalized person

There is no meantion of any restrictions due to the date of the parents nationalization.

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Vorläufige Anwendungshinweise des Bundesministeriums des Innern zum Staatsangehörigkeitsgesetz (StAG) in der Fassung des Zweiten Gesetzes zur Änderung des Staatsangehörigkeitsgesetzes vom 13. November 2014 (BGBl. I S. 1714)

• Allgemeine_Verwaltungsvorschrift_zum_Staatsangehoerigkeitsrecht.pdf

25 Zu § 25 Verlust bei Erwerb einer ausländischen Staatsangehörigkeit auf Antrag sowie Ausnahmen; Beibehaltungsgenehmigung
...
25.1.1 Zu Satz 1 Verlust der deutschen Staatsangehörigkeit
...
Ergänzende Anmerkung:
...

In Fällen, in denen das ausländische Recht die antragslose Erstreckung des Erwerbs der ausländischen Staatsangehörigkeit auf Personen vorsieht, die selbst keinen Antrag gestellt haben (insbesondere einbezogene minderjährige Kinder), liegt der für Absatz 1 erforderliche Antragserwerb auch dann nicht vor, wenn die Personen, auf die sich die Einbürgerung erstreckt hat, in den Einbürgerungsantrag des Eingebürgerten einbezogen

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Futher Source:

• Bundesverwaltungsamt - Feststellung der deutschen Staatsangehörigkeit beantragen

Answer 2

The current state of the relevant law may be found at 8 USC 1321(a). This contains another condition that you do not mention, which is that the child must have a green card:

(a) In general A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

(2) The child is under the age of eighteen years.

(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.

There is a question at Law from someone who received a German passport after obtaining US citizenship under 8 USC 1321(a) and disclosing it to German authorities: Document proving date of receiving U.S. citizenship. The asker of that question writes in an answer:

Under German citizenship law, one loses citizenship when "voluntarily" obtaining another citizenship. The reason that I did not lose my citizenship when I became a U.S. citizen was because: I was a child, and it happened automatically. Therefore, it is not considered voluntary. Luckily, I did not have to explain this, since it was a consulate in the U.S. (Houston, TX) that I visited, they were well aware of the way in which I inherited U.S. citizenship. However, I had some trouble when dealing with the London embassy as they did not understand all of the U.S. citizenship qualifiers.

I hope this helps anyone else that finds themselves in a similar situation! I was completely lost when I started this process, but three months later I have my German passport in my hand.

From this I conclude that obtaining citizenship that way does not trigger German loss of nationality provisions.

(However, Wikipedia says that the adoption provisions of the Child Citizenship Act of 2000 do trigger loss of nationality under the German provisions concerning adoption, so readers should keep that in mind if they are considering the nationality of someone who has been adopted.)