Desis in Deutschland / 'Foreigner Policy' and Applied Law in Germany

2. Description of the case

The Indian Mr. Agarwal (all names are changed) came to Germany in 1960 in order to continue his studies in physics. Due to the rules about admission to German universities, which do not consider an Indian bachelor sufficient for postgraduate studies, he contrary to his plans had to join undergraduate courses and thus was forced to face a longer period of studies in Germany than he had intended. As his family in India was only able to finance his journey abroad but not his living expenses, Mr. Agarwal worked in his holidays and applied for scholarships. He got the latter for a short period from the DAAD (German Academic Exchange Service) and for a longer period from his university receiving in total the amount of 13,330 DM. According to his own accounts in 1998 he did not apply for any scholarship directly linked to development policies as he did not wish to be bound in his planning for the future by such a contract. After Mr. Agarwal graduated he began a Ph.D. financed by salaried work at the university. During all this time his applications for permit to stay and to work had been granted without problems. When he, however, returned from a half year research trip to Oxford he was forced to sign a declaration that he will leave Germany once he has completed his Ph.D., as otherwise he would not have got the extension of his permit to stay which he needed to complete his research. Before he, however, submitted his thesis he had married a German in 1969 and thus acquired a right of residence as the spouse of a citizen of the country. In 1970, the year in which he also started to work for a research institute and his first child was born, Dr. Agarwal then applied on the 6th of August for naturalisation. The time which passed from then onwards until his becoming a German citizen can be divided into five periods which I will now briefly describe.

Two months after he had submitted his application Dr. Agarwal was informed by his home town Karlsruhe that in general the development politics interests of the German state prevent a naturalisation of applicants from developing countries. As, however, the conference of ministers of the interior had earlier that year decided that the rules for applicants with German spouses should be further discussed in the process of rewriting the Einbürgerungsrichtlinien and that until this has been completed such applications should not be decided on, Dr. Agarwal was told that if he did not object his application would be suspended for the time being.

About two years later he was informed that the minister of the interior of Baden-Württemberg had agreed to his naturalisation, since his home country India did not object to it. The only condition was that for reasons of development politics he had to pay back all the money he had received as scholarship from German bodies. As Dr. Agarwal could not remember to have entered any obligation to pay back, he sought to collect material to this effect. He contacted the DAAD, the foreign office and the education ministry responsible for the university he had gone to, asking them about the legal validity for claiming back the money he had received. The ministries as well as the town administration in the next few years kept on referring in their letters, sometimes in contrast to what they had said orally, to interests of development politics and the discretion of the public authority in deciding the case. Dr. Agarwal's request to identify him the justification for linking repayment and naturalisation was not further met, the town however, both in letters and especially in the many personal meetings which were characteristic for this period, started to pressurise him to either declare that he will repay or instead withdraw his application.

Instead of doing either in 1976 Dr. Agarwal asked his friend and lawyer Dr. Herzog to be officially, and not only behind the scenes as before, his legal advisor. This changed the path of conduct on both sides Within two weeks the application was rejected, a measure which formerly had been carefully avoided, and thus the way was open to go to the courts. Dr. Herzog used all possible means, first submitting a Widerspruch (protest) against the dismissal of the application and then, after the town had issued a Widerspruchsbescheid reacting to the protest, filed a suit at the Verwaltungsgericht (administrative court) Karlsruhe. As the judgement in 1977 confirmed the town's position Dr. Agarwal and Dr. Herzog appealed (Berufung) against it. In order to save time they suggested to the town administration to immediately head for an appeal (Revision) at the BVerwG rather than to first wait for a decision of the Verwaltungsgerichtshof (second stage in the appeal hierarchy). This path does not seem to have been pursued further and thus the next judgement was held by the VGH. It was again in favour of the official position and adding to this held that a further appeal would not be possible. Dr. Herzog thus directed a Nichtzulassungsbeschwerde (objection to the non-admission of an appeal) first to the VGH and as the latter rejected it the objection was passed on to the BVerwG. This led to the first success in Dr. Agarwal's case as the BverwG in 1979 accepted the objection and thus cleared the way for a further appeal (Revision).- During all this time Dr. Agarwal and Dr. Herzog were collecting more material relevant for the case and doing so, also came across similar court cases.

It then took again some more years till anything happened. In 1983 Dr. Agarwal was informed that there had been a procedural mistake in not including the federal home office in the case. This meant that in case the BVerwG decided in his favour it would not be binding on the authority, but that in the reverse case he would finally have lost. In the end the BVerwG decided in favour of Dr. Agarwal's case and it was referred back to the VGH for a renewed consideration. The latter then asked both parties to the case whether they would be willing to agree to a settlement out of court. While Dr. Herzog was ready to do so, the town administration, however, refused as they considered the matter of too much importance. Accordingly the case went on and the home ministry was included as a party in it. Since the case was to be decided newly, it was also necessary to collect more material for it. On the basis of the new facts and the former ruling of the BVerwG the VGH decided that Dr. Agarwal had to be naturalised, but it left the town administration and the home office the possibility of appealing against this. The latter used the opportunity and so the BVerwG was to be involved a further time.

In 1987 there was finally the last judgement of the BVerwG which ordered that Dr. Agarwal had to be given German citizenship. On the 7th September 1987, more than 17 years after he had applied for it, Dr. Agarwal then became a German by law. Except for the regulation of some financial matters the battle with the administration was over.

The brief account of the events illustrates the degree of persistence needed on the side of the Indian applicant. For 17 years he not only was in a constant process of correspondence with several institutions, especially in the initial stage he also frequently was summoned to personal interviews, he had to learn all the details of the German naturalisation law and was constantly collecting material linked to his case. All this he could only do as he had a secure employment and the backing of family and friends as well as the support of a lawyer who worked all these years without any financial recompense.

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© Urmila Goel, / englishDesis in Deutschland/ Recht/ naturalisation 1998/2004