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Imagine that you automatically lost your Dutch citizenship after you have been misinformed by the Dutch embassy: it happened to the 29-year-old Jan (not his real name) from South Africa.

Jan was born in 1991 from a Dutch / South African mother and a South African father and obtained both Dutch and South African citizenship at birth. Jan retained Dutch citizenship as a minor and went - before the ten-year loss period in article 15 paragraph 1 under c of the Dutch Nationality Act 2003* passed - to the embassy to apply for a Dutch passport. He was told that he was not entitled to a Dutch passport and when Jan went to the Consulate General a few years later, he received the same message. However, Jan always remained convinced that he was Dutch and contacted our firm in 2019. Unfortunately, we came to the conclusion that he had lost his Dutch citizenship only three weeks earlier because of the ten-year loss period.

Proportionality test

After the Dutch Council of State issued a judgment in the cases Tjebbes ea. (more information can be found here) regarding the automatic loss of Dutch citizenship, we assisted Jan with preparing an application for a Dutch passport which he submitted at a border municipality in the Netherlands. In his application he argued that the loss of his Dutch -and therefore EU- citizenship was disproportionate from the perspective of EU law, because at the time of loss he had concrete plans to settle with his partner in Belgium and was also living there at the moment he filed his passport application. Jan was able to prove -with documentary evidence- that he and his partner wanted to develop professional and/or study activities in Belgium and that the loss of EU-citizenship not only had far-reaching consequences with regard to the exercise of the right to move and reside freely in the EU (because as a South African citizen he had to meet much stricter conditions in order to obtain legal residence in Belgium and to work/study there), but also that this loss was caused by incorrect information provided by the Dutch representations.

The advice of the IND

After the municipality had submitted the case to the Immigration and Naturalization Service (IND) for advice on whether or not the loss of Dutch (and therefore EU) citizenship was proportional, the IND came to the conclusion that this loss could not be maintained and that and that article 15 paragraph 1 under c of the of the Dutch Nationality Act 2003 could not be applied, because this provision conflicted with article 20 of the Treaty on the Functioning of the European Union (TFEU). The municipality, which adopted the advice of the IND, then immediately issued a positive decision on Jan's passport application.

Once Dutch, always Dutch

Jan is Dutch again. In fact, since he never lost his Dutch citizenship, he has always been Dutch! The outcome of his passport application procedure offers hope for former Dutch citizens who automatically lost Dutch citizenship after 1 November 1993 and who can demonstrate with documentary evidence that- at the time of loss- they were disproportionately affected in exercising their rights as EU citizens (see also here).

If you are in such a situation and you would you like to get assistance with your passport application please contact Mirjam den Besten or Hermie de Voer.

* this provision reads as follows: 1. a person who is of full age shall lose his or her Netherlands nationality: (..) c. if he or she also has a foreign nationality and, after coming of age and while possessing both nationalities, has his or her principal place of residence for a continuous period of ten years outside the Netherlands, the Netherlands Antilles and Aruba, and outside the areas to which the Treaty on European Union applies (…)

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