In recent weeks, citizenship has become a hotly debated topic. In the USA, Donald Trump announced a decree that would have abolished birthright citizenship had it not been stopped by a court for being unconstitutional. In France, politicians including Prime Minister François Bayrou and Minister of the Interior Bruno Retailleau followed suit by suggesting that France, too, should reassess who has the right to receive French citizenship. While both used right-wing rhetoric such as “feeling of an inundation” through migration, party leader of the far-right Rassemblement National, Marine Le Pen, joined the debate with calls for doing away with French birthright citizenship.
Meanwhile, in Germany, discussions around migration and citizenship rights take place in the context of early elections on February 23, following the collapse of the coalition between Social Democrats (SPD), Green Party (Bündnis 90 Die Grünen), and Liberals (FDP). Within this atmosphere of uncertainty over who will form the government (and how right-wing this government will be), CDU party leader Friedrich Merz proposed that it should be possible to withdraw citizenship from people with dual citizenship who committed a crime.
It is not entirely impossible to expatriate citizens within the framework of the German constitution—as long as they are not thereby rendered stateless. In fact, German citizenship law has already been amended in 2019 to withdraw the German citizenship of those involved in terrorism abroad. The current idea put forth by the Conservatives (CDU/CSU) is, however, legally problematic if not unconstitutional.
Besides questions of constitutionality, legal expert Daniel Thym draws attention to the proposal’s practicality. He explains that expatriation as a preferred instrument to prosecute criminal behavior would present a structural overload. The crimes the Conservatives consider sufficient to warrant withdrawal of citizenship include antisemitism. While incitement to hatred is a clearly defined criminal offense within German law, there is no specific law regulating antisemitic crimes. The legal unclarity as well as the contested definition of antisemitism across the board—which often includes criticism of the Israeli government—would make a law allowing for expatriation highly unpredictable. Constitutional law expert, Matthias Goldmann adds to the criticism of the proposal that the possibility to withdraw citizenship would be problematic in regard to the constitution since it creates a two-class hierarchy of citizens: Germans without a migration background, and Germans with a migration background.
The suggestion to allow for expatriation as a response to criminal offenses is not the first contested and legally problematic proposal by CDU/CSU in the past two months. On January 29, CDU/CSU, together with FDP and the far-right AfD, voted in favor of their motion for a resolution that aims at making it possible to refuse refugees arriving to Germany at the country’s border. Such a practice would be in breach of both international and European law.
At the latest, the ongoing election campaign has made it obvious that the CDU under Friedrich Merz is no longer a center party but has moved considerably to the right. The collaboration with the AfD—only two days after commemorating the victims of the Nazi regime—the potentially unconstitutional proposal to withdraw citizenship from dual citizens and the legally problematic suggestions to refuse those who seek help entry into the country are a dangerous move.
Article 16 of the German constitution allows for expatriation if the person whose citizenship is withdrawn is not rendered stateless and the decision is rooted in law. At the same time, this article is more than law and more than a promise of a guaranteed right. It is a warning not to let history repeat itself.
Between 1933 and 1945, the NSDAP withdrew citizenship from thousands of people. Their Ausbürgerungsgesetz (expatriation law) was targeted first and foremost at Jewish citizens and political opponents including communists, social democrats, union members, artists, and intellectuals. Throughout the dictatorship of the Nazi regime, the law was amended to include an increasing number of people, including—in 1941—any German citizen who lived outside of Germany or was held in a concentration camp outside the country’s borders.
The current proposal by the Conservatives of who would be at risk of losing German citizenship is still somewhat limited. Yet, aspects such as the broadly defined offense of antisemitic crimes as well as recent debates that show how quickly a person can be cast as a radical, a criminal, an extremist, or a terrorist reveal that no one is guaranteed protection per se under such a law.
Even if, these proposals by the Conservatives cannot be put into action—whether practically or constitutionally—and even if their main purpose should be to win back voters from the far-right, it is a dangerous game. And one that can only be lost.
By adopting right-wing rhetoric and supporting legally problematic policies, the CDU alongside their counterparts abroad are adding fuel to the increasingly hateful and anti-democratic fires kindling in the Western democracies they claim to protect. Merz and his colleagues would do well to remember the words of their fellow party member, former chancellor Angela Merkel: “Be mindful of language. Because language is, so to say, the preform of action. And once language has derailed, it does not take long until actions, too, derail. And then, violence is no longer far off, either.”
Written by Merle Emrich.
Cover image by Merle Emrich.