About the distressing consequences of the loss of Dutch citizenship and the ‘elderly policy’
Mr. Jakobs was born and raised in the former Dutch East Indies, with the Dutch nationality. In the fifties and sixties of the last century Mr. Jakobs lived with his then-wife and son in The Hague. After his divorce he emigrated with his son to the United States. His son soon returned to his mother in the Netherlands, while Mr. Jakobs remains in the United States. He regularly visited his son in the Netherlands.
Years later, Mr. Jakobs remarried with an American and he took on American nationality. As the spouse of an American citizen, he could keep his Dutch nationality. Mr. Jakobs therefore became a dual national in 2004. In 2019, his wife passed away. Mr. Jakobs is 95 years old at the time. Although he is in good health, he can no longer live on his own. He needs daily support. He arranges with his son to spend the last years of his life with him in the Netherlands.
When Mr. Jakobs wants to register at his son’s address in The Hague, he finds out that he is no longer Dutch. He had automatically lost his Dutch citizenship in 2014, at the age of 90, because he lived outside of Europe for 10 years with dual nationality and did not renew his passport during this period. His last Dutch passport had been issued in 2001. He did not need it in the United States and was not aware of the consequences of letting it expire.
Although the Court of Justice of the European Union and, subsequently, the Dutch Council of State, have ruled that this automatic loss of Dutch citizenship may not be disproportional, this proportionality test only concerns the concrete consequences with regard to the exercise of his EU rights at the moment of the loss.
Mr. Jakobs is not able to demonstrate this. He was born and raised as a Dutch national, has a Dutch son and grandson, speaks Dutch fluently, feels Dutch and wants to spend the last years of his life in the Netherlands. However, he cannot demonstrate that the loss of his Dutch citizenship is contrary to the European principle of proportionality. After all, as an American citizen, he could always visit his Dutch family and, as a 90-year-old, he would have a hard time arguing that he experienced difficulties accepting a new job or starting a business in a European member state. For the test only considers disproportionate consequences of not being able to exercise his European rights in 2014, not the distressing effects of the loss of Dutch identity and the wish to spend his last years with his son in the Netherlands.
Now that Mr. Jakobs is no longer Dutch, he needs a residence permit to live together with his son in the Netherlands. For the re-entry of former Dutch nationals who were born and raised in the Netherlands, there is a specific residence permit. Unfortunately, Mr. Jakobs does not qualify for this permit. He was not born in the Netherlands, but in the former Dutch East Indies. He also does not qualify for a special permit for former Dutch nationals who were born abroad but have special ties with the Netherlands, because he is a resident of the country of his (other) nationality.
In 2012 the special permit for the parents of adult children in the Netherlands was repealed from Dutch immigration law. According to established jurisprudence of the European Human Rights Court, ‘more than normal emotional ties’ (including a degree of dependency) between the parents and their adult children must be proven for applications concerning the right to respect family life as laid down in article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
According to the state secretary, this was not the case for Mr. Jakobs and his son. The housing and daily care by his son and his son’s spouse are considered customary between adult children and their parents. The state secretary subsequently assessed whether he qualified for other residence permits which could be granted ex officio (without an application submitted).
In that context, Mr. Jakobs appealed to the so-called “elderly policy”. This policy is or was until recently applicable to parents in their last stage of life. Conditions were that the parent was single, very old, in need of care and assistance and that the only child who could take care of the parent lived in the Netherlands, was a Dutch citizen or had a permanent residence permit, and had sufficient financial means to support the parent. These conditions all apply to Mr. Jakobs and his son. However, together with the discretionary power of the state secretary, the elderly policy was abolished on 1 May 2019. Jakobs‘ application was filed at a later date.
In spite of this all, the circumstances in this case were a reason for the state secretary to assess the case in accordance with article 3.6ba Vb (the assessment of a distressing situation, which replaced the now repealed discretionary power). Even though this article is interpreted very strictly by the state secretary, Mr. Jakobs was nevertheless granted a residence permit on non-temporary humanitarian grounds due to the exceptionally distressing nature of his situation.
Mr. Jakobs now lives together with his son and daughter-in-law. He can still regain his Dutch citizenship after residing in the Netherlands for a year via the option procedure.
Are you a former Dutch national and do you want to know if it’s possible to live in the Netherlands and regain Dutch citizenship? Or do you have questions about the possibilities of family life with your parent in the Netherlands? Please contact Elles Besselsen.