Particular hardship and different requirements in discretionary naturalisation

Some people cannot fully support themselves from their own resources despite serious efforts. Illness, disability, necessary care responsibilities or childcare may significantly limit their opportunities to work. Where the requirements for an entitlement to naturalisation are not met, discretionary naturalisation under § 8 StAG may be an option. The hardship provision allows an individual assessment, but does not replace unmet requirements with a blanket exception.

For entitlement-based naturalisation under § 10 StAG, naturalisation must be granted if all statutory requirements are met. § 8 StAG is structured differently: where the necessary requirements are satisfied, the authority may decide on naturalisation at its discretion. This does not mean an unrestricted decision based on personal impressions. The authority must observe statutory limits, the purpose of the power conferred on it and the significant circumstances of the individual case.

Before presenting a hardship case, we examine whether you already have an entitlement to naturalisation. Someone who meets the current full-time employment exception or has a protected older application may not need a discretionary decision. The transitional rule for applications made by 23 August 2023 may offer a more favourable route, particularly where the applicant is not responsible for receiving benefits.

The financial assessment under § 8 is not simply a less demanding version of § 10. The ability to provide lasting support for oneself and family members entitled to maintenance is assessed independently. The applicant’s own income, assets and reliable maintenance claims may be taken into account. For spouses, their combined financial capacity may be sufficient.

As a rule, we also include relatives abroad who are entitled to maintenance in this assessment. The assessment must not be limited to people living in Germany or family reunification that is already specifically planned. What matters is the legal maintenance relationship. An entitlement that is possible in principle under family law is sufficient; neither actual payment nor an enforceable maintenance order is required. If a concrete entitlement is absent solely because the person lacks sufficient means to pay, this does not remove the need for the financial assessment. Purely voluntary support for any relatives must be distinguished from this.

Under the official administrative guidance, social protection and the sustainability of funding are also considered. Certain transfer payments require a more far-reaching forecast than in entitlement-based naturalisation. The guidance generally treats child benefit and pensions from German providers as permissible income; for housing benefit, education funding or time-limited replacement benefits, it generally requires a positive prospect of being able to manage without these transfer payments in the future. This is the administrative interpretation of the ability to provide support under § 8(1); whether it can be waived under subsection (2) is a further assessment step. Simply adopting the assessment under § 10 would therefore be inaccurate.

Since the 2024 reform, § 10 has no longer contained a general exception for every case of SGB II or SGB XII benefit receipt for which the person is not responsible. Instead, it defines specific categories of cases. At the same time, the legislature expressly stated that particular personal difficulties should be taken into account when applying § 8(2).

Illness, disability, childcare, care responsibilities and education are particularly relevant. An overall assessment is required, considering whether the person has made the contributions towards securing subsistence that were actually possible and reasonable for them.

Older court decisions must therefore not be used without taking this changed context into account. Previously, the general exception within § 10 could accommodate many of these situations. Today, some of these issues have been shifted to discretionary naturalisation. However, administrative guidance does not amend legislation and does not bind courts in the same way as a statute. Whether a particular case amounts to particular hardship remains open to legal review.

An illness or disability may permanently or temporarily limit a person’s ability to work enough to support themselves. This connection is what matters for the financial hardship assessment. A severe disability card alone does not necessarily establish that work sufficient to cover living costs is impossible. Conversely, a significant health restriction may be relevant even if not all its effects have already been recorded in a particular official decision.

Medical statements explaining the effects on capacity for work, the number of hours the person can manage and the likely duration are helpful. An occupational health assessment or a reduced earning capacity pension decision may also be important. Saying that someone is “ill” is less informative than a clear description of the work they can still actually do and to what extent.

The aim is not to cure an illness through naturalisation. Under the administrative practice applied since the reform, the assessment should examine whether the financial requirements cause particular hardship in light of the specific restrictions. The person must not be expected to undertake work that they are objectively unable to perform. On the other hand, available and reasonable opportunities remain part of the assessment.

An exemption from language evidence because of illness must be treated separately. Language skills and the ability to provide support are different requirements. Recognition of a health-related exception in one area does not automatically mean recognition in the other. The same medical findings may be relevant to both, but must explain the impairment that is decisive for each.

For older people, the amount of their pension can no longer be substantially changed by taking up new work in the short term. The administrative guidance particularly takes account of people who built up only small pension entitlements despite a largely continuous working life and therefore need supplementary basic income support. Recognised periods of child-raising, or periods eligible for recognition, should also be given appropriate consideration.

However, reaching retirement age alone does not create an automatic hardship exception. It remains necessary to consider why the person’s own resources are insufficient. Employment history, actual earning opportunities, health burdens and care work must be distinguished. A low pension may have different causes, not all of which can be attributed to the applicant.

A specific statutory exception already exists for certain former labour migrants. We therefore first check whether you belong to the group of guest workers, contract workers or spouses who joined them. The hardship provision must not replace an existing entitlement merely because examining the historical route of entry involves more work.

Necessary childcare may rule out full-time employment. This is particularly evident for single parents, but also for parents who share paid work because of a child’s particular care needs. The statutory family exception under § 10 does not automatically apply where neither spouse or registered civil partner meets the required full-time employment conditions.

Under § 8, the actual care requirements are then decisive. Important factors include the children’s ages and number, their stage of development, childcare hours, available places and any particular support needs. Theoretical access to all-day childcare is of little help if no place is actually available or necessary therapy appointments fall outside those hours.

We explain, by reference to your circumstances, why particular employment is not possible or cannot reasonably be expected. Parenthood alone is not enough. Where there are two parents, their actual division of responsibilities may also be relevant. The assessment must consider the particular family: it must neither assume, without examination, that no work can be expected at all, nor dismiss every care burden as a self-chosen restriction.

A decision assigning a care grade provides an important starting point, but does not always describe the full amount of time the applicant personally spends caring. A care plan, the division of responsibilities with other relatives and the services available from a home care provider may also be relevant. If professional help covers only individual tasks, it cannot simply be assumed that full-time work is possible alongside the care responsibilities.

The administrative guidance requires an overall assessment of the specific care arrangements. Whether the care needs will continue or are likely to change may be important. Care allowance is not simply additional freely available pay: its function and the associated expenditure must be understood. The burden of care and the amount of money available are connected, but they are not the same question.

People attending school, undertaking vocational training or seriously pursuing university studies may also face particular financial difficulties. This also includes situations where supplementary social benefits are needed or a maintenance claim against parents provides no financial support because the parents themselves are in need.

We examine the evidence that education or training is actually being pursued. School certificates, training contracts, evidence of studies and progress to date provide suitable foundations. Repeating a single examination does not automatically mean that a degree is not being pursued seriously. Conversely, formal enrolment alone does not establish actual educational progress.

Whether a side job is reasonable, and for how many hours, depends on the individual case. Education should not be undermined by blanket demands to work; nevertheless, realistic opportunities that do exist may be taken into account. The residence status must also be suitable. The BMI guidance excludes holders of a residence permit under § 16b AufenthG from this particular category and requires a status suitable under § 10(1), sentence 1, no. 2. This must be understood as an administrative requirement for the educational situation described: § 8 itself does not contain the full list of residence titles found in § 10. An independent assessment of the chosen naturalisation route remains necessary.

An unfavourable labour market or unsuccessful job applications may explain benefit receipt. However, for the current hardship assessment, the official guidance generally requires additional personal impairments or difficulties. The former general standard of not being responsible is not intended to continue unchanged for every new application under a different heading.

This also means that voluntary work, good language skills or long residence do not replace a specific hardship justification. Such circumstances may be significant for the overall picture and the exercise of discretion. However, on their own they do not answer why the statutory support requirement may be waived in the particular case. We keep the individual assessment stages clearly distinct.

Alongside particular hardship, § 8(2) refers to reasons of public interest. This means an interest of the state that goes beyond the ordinary desire for naturalisation. It may become relevant, for example, in particular scientific, cultural or comparable situations. Membership of a professional group alone is not automatically sufficient.

Nor does a family’s understandable wish to share one nationality always create such an exceptional case on its own. Equally, easier travel abroad does not automatically establish particular hardship. There must be identifiable additional circumstances that justify departing from the financial requirement.

For the discretionary decision, it matters whether the inability to provide support is likely to be permanent. Someone who will never be able to earn enough because of a lasting impairment is in a different position from someone whose training ends in a few months. Permanent exclusion from any prospect of naturalisation may weigh particularly heavily.

The administrative guidance provides that, in certain circumstances, the scope of discretion may narrow in favour of naturalisation. The other requirements and the person’s own reasonable efforts must be taken into account accordingly. This does not create a general automatic rule. For temporary obstacles, the question may also arise whether a limited wait is reasonable; its duration and effects must be weighed in the individual case.

In our hardship submission, we connect the financial shortfall with its specific cause. In it, we set out:

• what funds are available;

• what expenses and maintenance obligations exist;

• what limits additional paid work;

• which reasonable opportunities are already being used. Medical, family-related or education-related documents can support this, depending on the actual circumstances.

A general request for “leniency” leaves these legal questions unanswered. Equally, a large, unsorted collection of decisions does not replace an explanation of the connection. What matters is a clear account of the particular circumstances, their likely duration and their effects. The naturalisation authority must establish these facts and take them into account in its decision.

A refusal is subject to judicial review. Two levels must be distinguished: whether the statutory requirements for particular hardship are met is a question of law; only the subsequent exercise of discretion is subject to the specific review for errors of discretion. At that stage, the court examines in particular whether significant circumstances were overlooked, statutory limits exceeded or irrelevant considerations taken into account. It does not simply substitute its own assessment for that of the authority. The appropriate objective of legal proceedings may therefore also be a fresh, lawful decision. § 114 VwGO