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

3.4. Phase IV: litigation II (1983-4)

In the second phase of litigation there are two major changes to note. These are on the one hand the inclusion of the federal home office in the case and on the other a new approach taken by the courts. The former fact was the effect of and led to a further politicisation of the issue of naturalisation applications by citizens of developing countries. The home office now emphasised the necessity of its agreeing to naturalisations and thus the need for it to be included in all relevant court cases, even though this had not been the standard practice formerly. The contributions made to this specific case by the home office were general treatments about the importance of German development politics, the need to restrain brain drain and to prevent a discrimination of Germans as well as the fiscal impact of a decision in Dr. Agarwal's favour which would prevent future demands for repayment and might challenge the legality of former repayments. Even more so than the line of reasoning taken earlier by the town administration the details of the specific case were largely ignored by the home office.

"It thus concludes that already the fact that the plaintiff comes from a developing country has as a result that the scholarship he got from the DAAD was provided under development politics considerations." (from the grounds of appeal by the federal home office to the BVerwG, dated 14.09.1984/ own translation)

The public authorities were not willing to agree to any settlement which did not absolutely confirm their point of view and thus it was now them, and no longer Dr. Agarwal, who stubbornly sought to fight the case through all possibilities of the appeal system.

This change of roles had come about, because the courts now took a course more favourable to the applicant. Reference was made by them to other court cases about the same issue, the judgements of which made it necessary to look more closely into the details of the specific case. The latter, however, had due to the long time period which had passed since the application in 1970 become increasingly favourable for a naturalisation of Dr. Agarwal. By this time he had spend roughly half his life in Germany, his children grew up there, he had bought a house and a return to India was more unlikely then ever. It was, thus, in this specific case almost impossible to consider the naturalisation as the sole cause for the failure of a development aid objective. The courts, accordingly, argued that the German state had to face this reality independently of an abstract state interest. Furthermore, the courts now started to challenge the legality of the linkage of naturalisation and repayment which formerly had been not questioned.

It seemed now that Dr. Agarwal, due to his persistence rather than through his arguments, could finally become a German citizen. The appeal by the federal home office, however, prevented this for another few years and thus also prevented a necessary change in policy for that time.

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