Holocaust children return
Legal Corner: Feb. 2010
In the course of WWII, Austrian nationals of Jewish faith saw themselves forced to leave Austria for racist and political reasons. They became citizens of another country, and had to give up their Austrian citizenship.
Those who returned have in most cases regained this right. Current Austrian law foresees that people who had to flee Austria prior to May 9, 1945, because they were persecuted or feared to be persecuted by the NSDAP or the authorities of the Third Reich, may regain Austrian citizenship by declaration, provided that they were Austrian citizens at the time when they were forced to leave.
But what about their children? Do they retain a right to Austrian citizenship?
Many Holocaust victims and refugees have regained Austrian citizenship through a simple declaration – a procedure that is fairly uncomplicated and does not require renouncing any other citizenship. In many cases, one could even argue that Austrian citizenship does not need to be regained, as it has never been lost in the first place: The Austrian Supreme Administrative Court (Verwaltungsgerichtshof) has ruled that by being forced to take up another citizenship one does not lose a prior Austrian citizenship. Under this decision, those who were persecuted and/or forced to leave and are currently in possession of foreign citizenship can request the confirmation of Austrian citizenship from the authorities. But while such a procedure is possible, in practice the requirements for evidence have made it far more complicated than obtaining citizenship by declaration.
This procedure is of particular relevance for the children of persecuted Austrian nationals who had to flee the country. Under current law, they already retain a right to Austrian citizenship, if, at the time of their birth, it can be shown that one parent was an Austrian citizen. They, like their parents, can apply for ascertainment of their Austrian nationality on the grounds of citizenship by descent: According to Art. 7 (1) of the Austrian Citizenship Act 1965, a child may obtain Austrian citizenship, if a parent is an Austrian citizen at the time of the child’s birth. However, this is notwhere the story ends. Before the amending of the Austrian Citizenship Act in 1983, Art. 7 provided that a legitimate child might only obtain Austrian citizenship if the father was an Austrian citizen at the time of his birth. If the mother only was a citizen, the child could obtain Austrian citizenship only if he would have otherwise been stateless.
This provision, of course, seriously infringes on the principle of equality and was thus amended by the Citizenship Act 1983 to grant the child Austrian citizenship if either parent were Austrian citizens. The problem, however, was that the law was not retroactive, that is, that Art. 7 of the Citizenship Act 1965 still applies to children who were born before 1983. Thus, a legitimate child of a persecuted Austrian mother and foreign father would not be able to obtain Austrian citizenship by descent as the law stands today.
We are seeking to change this very unequal situation, working on an appeal before the Austrian Supreme Administrative Court. We are optimistic that a ruling will be handed down in our favour – thus upholding the fundamental principle of equality.
Dorothea Kipperman, M.A.I.S., LL.B. joined Lansky, Ganzger + Partner (LGP) a leading international law firm based in Vienna, as legal counsel in 2009. She received her LL.B. from Birmingham University (UK) and is alumna of the Diplomatic Academy Vienna.