Transitional rule for applications made by 23 August 2023 under § 40a StAG

An older naturalisation application may make a decisive difference to the subsistence requirement. For applications made up to and including 23 August 2023, § 40a StAG protects the more favourable former rule, subject to certain conditions. This means that an entitlement to naturalisation may still be possible despite receipt of social benefits. However, the provision does not offer general protection preserving all former naturalisation rules.

The provision specifically refers to § 10(1), sentence 1, no. 3 in the version in force before 27 June 2024. That older rule must be applied insofar as it contains more favourable provisions. It therefore concerns the financial requirement for entitlement-based naturalisation and a comparison between the old and new law. § 40a StAG

Under the former rule, an entitlement was possible despite benefits under SGB II or SGB XII if the applicant was not responsible for needing them. In the current § 10, that general exception has been replaced by specific, expressly defined categories of cases. The difference may be significant, for example, where illness limits a person’s capacity to work or where there is an understandable reason for unemployment for which the person is not responsible.

A person covered by § 40a therefore does not have to be referred to discretionary naturalisation simply because of the reform. If the more favourable old law satisfies the financial requirement and all other requirements are met, a legally binding entitlement to naturalisation may still exist. In legal terms, this differs from a decision in which the authority is permitted to exercise discretion.

An application from September 2023 generally already falls outside the group defined by the legislation. This applies even if the authority was still using the old financial rule when the application was made. Conversely, an application made in time in August 2023 and still pending does not fall outside the transitional rule simply because the decision is made years later.

The wording of the transitional provision governs the application of the cut-off date. A general claim to have relied on earlier information online does not replace an application made in time.

There must be an actual request for naturalisation that reached the competent body in time. Non-binding advice, an enquiry about requirements or booking an appointment does not necessarily amount to a naturalisation application. What matters is the content of the statement made at the time, not merely the subject line of an email or the description in a calendar.

The official administrative guidance expressly excludes a mere online “quick check”. Such a check uses the person’s own information to calculate non-binding prospects of success, without opening an individual naturalisation procedure with the competent authority. A saved positive self-assessment from such a test is therefore no substitute for an application made in time. AH-StAG 2025, no. 40a

On the other hand, an application does not have to contain every document later requested at the time it is received in order to be recognisable as an application at all. Making an application and having a complete file ready for a decision are different questions. Where documents were incomplete, what matters is whether naturalisation had already been clearly requested at that time or whether the intention was merely to prepare for a later application.

Nor is the citation of a particular statutory section at the time usually decisive. A request for naturalisation is generally assessed under the potentially applicable legal bases unless it has validly been restricted to a particular basis. Someone who applied without legal expertise therefore does not lose transitional protection merely because they did not mention § 10 or § 40a.

We document timely submission using, in particular, an acknowledgement of receipt, the original application with proof of transmission or a verifiable electronic receipt. For postal submissions, we distinguish dispatch from proven receipt. A letter sent in time did not necessarily arrive in time. Simply recalling the date it was posted therefore does not resolve the cut-off-date question.

We also examine email correspondence and later document requests to establish the procedural position at the time. If the authority had already requested individual documents for the naturalisation application before the cut-off date, this may be important in establishing the timing. The evidential weight depends on the content. A general information sheet unrelated to a specific application contributes less.

After a move or change of responsibility, we document the original application and its transfer to the new authority. A new file reference does not automatically mean a new application. Conversely, a later fresh application after an earlier procedure has ended is legally different from simply continuing to process the same application.

The application must also be attributable to the individual concerned. An earlier enquiry by a parent or a spouse’s own older procedure does not automatically establish an equally old application for every family member. For families, it is therefore necessary to check who actually requested their own naturalisation or a child’s joint naturalisation in the original application. A later addition may complete missing evidence; however, it does not automatically move the first application of an additional person back to before the cut-off date. Guidance on submission methods and evidence of receipt is available in Submitting an application and proving receipt.

The administrative guidance refers to older applications that have not been validly withdrawn and have not been refused by a final administrative decision or final court judgment. Protection therefore also depends on whether the original procedure remains legally open. A merely prolonged pause in processing is different from an express withdrawal or a refusal that can no longer be challenged.

If withdrawal of an old application is requested, we examine the consequences for protection under § 40a before such a declaration is made. A later new application cannot simply be backdated to the withdrawn application. Nor is an identical form submitted again automatically just a supplement if the original application had already been brought to an end.

§ 40a does not require the old law to be applied in every case. If the current rule offers the more favourable solution for the particular person, it remains available. For example, the full-time employment exception may apply if current employment and the required twenty months are evidenced.

Conversely, someone who meets none of the current exceptions may benefit from the former general rule covering benefit receipt for which they are not responsible. There is then no need to try artificially to fit the present situation into an unsuitable new category. The very purpose of the comparison is to prevent a protected older application from being placed at a disadvantage by the stricter financial requirement.

This does not involve combining arbitrary individual elements from different laws into a newly invented exception. The authority must apply the relevant rules transparently to the same current facts. It is helpful to explain expressly why the old financial rule is more favourable in the particular case and which factual circumstances support that conclusion.

The term requires an evaluative assessment of the causes of benefit receipt. It is not the same as making a moral judgement about the person. What matters is whether conduct or an omission attributable to them significantly causes or maintains their current receipt of benefits. Legally relevant responsibility may exist even without intentional misconduct.

Where someone is made redundant for operational reasons, the circumstances of the job loss may weigh in their favour. However, this does not explain every subsequent period of unemployment. It also matters whether they then sought reasonable work and what opportunities actually existed. Applications, responses, qualifications and health restrictions may together provide a meaningful picture.

Illness or disability may prevent or limit employment. However, simply naming a diagnosis does not always answer the financial question. The key issues are the effects on the ability to work, stamina and working hours. Where childcare or other care is necessary, actual needs, available support and realistic care alternatives must be considered.

A decision by the Jobcenter or social welfare office may provide important facts for this purpose. However, it does not bind the naturalisation authority in every assessment under nationality law. The fact that no benefit reduction was imposed therefore does not automatically prove that the person is not responsible. Equally, a single dispute under social security law must not be used to draw conclusions about the person’s entire employment history without examination.

For pensioners, current needs may be shaped by many decades of working life. Under the former rule, a substantial increase in basic income support caused by the person themselves may also be relevant. At the same time, the earlier conduct criticised must be a defining cause of their present benefit receipt overall. Not every minor pension gap is enough.

Attributing responsibility is also subject to a time limit. Under the former legal position, an eight-year period was used. In the section on the current guest-worker exception, the 2025 BMI guidance generally takes a ten-year approach, explaining it by reference to the changed statutory framework. Such figures must not be adopted without examining their particular legal context. In particular, § 40a itself contains neither an eight-year nor a ten-year rule.

For your protected older application, we establish the standards under the more favourable former rule. Merely stating that the person did too little work at some point in the past is not enough for a properly reasoned refusal. Conversely, reaching retirement age does not replace an assessment of why their own current resources are insufficient.

§ 40a protects a legal rule, not an unchanging set of facts from the application date. Income, family composition and health may change later. The current situation must therefore be presented for the decision. A job held at the time but since lost cannot simply be counted as continuing income.

This can also work in the applicant’s favour. Someone who did not yet meet all the requirements when applying may meet them later. A new job or sufficiently secure pension income may simplify the financial question. The transitional rule does not require all circumstances from summer 2023 to be maintained permanently.

The renaming of Bürgergeld as Grundsicherungsgeld on 1 July 2026 does not remove its connection to SGB II. Even for an older application, the current payment must be classified according to its statutory basis. A new name does not automatically make previously relevant benefit receipt harmless.

If the cut-off date was missed, an ordinary extension of time cannot remedy this. The official guidance rules out reinstatement of the missed deadline for the purpose of bringing a later application within § 40a. The current exceptions and, where relevant, particular hardship in discretionary naturalisation must then be assessed.

For your application, we organise the documents into three separate areas:

1. evidence that the application was made in time and remains pending;

2. the current financial situation;

3. an explanation of the causes of benefit receipt. This separation makes it clear whether there is genuinely a cut-off-date problem or whether evidence for the more favourable substantive rule is simply still missing.