Have you lost your Dutch nationality because you have dual citizenship and lived outside of the Netherlands and the EU for more than ten uninterrupted years without a Dutch passport? You might be able to regain your Dutch nationality.

By Elles Besselsen and Danielle Snaathorst

On 12 February 2020, the Council of State, the highest administrative court in the Netherlands, ruled in six cases of former Dutch nationals with dual citizenship who lost their Dutch nationality, because they had resided outside of the Netherlands and the European Union for more than 10 uninterrupted years and had not renewed their Dutch passports during that time. The Council of State determined that if the consequences of the loss of Dutch nationality are disproportionate from an EU law perspective, former Dutch citizens should be able to regain their Dutch nationality with retroactive effect. What does this mean in practice?

Dutch Citizenship Act

The Dutch Citizenship Act (Rijkswet op het Nederlanderschap (RWN)) stipulates that Dutch citizenship is automatically lost, if a person, in addition to Dutch citizenship, has another nationality and has had their main residence outside of the Netherlands and/or the European Union for an uninterrupted period of 10 years. This loss does not occur if this person has obtained a declaration of Dutch citizenship or a (renewed) Dutch travel document/identity card within that period of 10 years. A minor child may lose their Dutch citizenship together with their parent.

With these rules, the Dutch legislator aims to guarantee the effective bond between its citizens and the Netherlands. If someone stays outside of the Netherlands or Europe for a long period of time and did not need a Dutch passport at that time, the idea is that there will no longer be an effective bond with the Netherlands. In practice, however, it appears that many people are not aware of this ground for loss. They only find out when it is too late, but they still feel Dutch.

Until now, when applying for a passport or a procedure to establish Dutch citizenship in these cases, it was simply established that the person in question was no longer Dutch. In the six cases brought before the Council of State, the former Dutch citizens argued that the automatic loss of their Dutch nationality in their case was disproportionate and therefore contrary to EU law. The case prompted the Council of State to submit questions to the Court of Justice of the European Union in a preliminary ruling proceeding.

Is automatic loss of Dutch citizenship contrary to EU law?

On 12 March 2019, in the Tjebbes judgment, the Court of Justice answered that, in principle, EU law does not prohibit the automatic loss of Dutch nationality (for reasons of public interest), even if this also leads to the loss of EU citizenship and the associated rights of free movement and residence within the EU.

However, the Court also stated that the automatic loss of these EU rights may be disproportionate. The national authorities must examine the consequences of the loss of Dutch citizenship and therefore also EU citizenship for each individual concerned and their possible family members.

The ruling of the Council of State

The RWN does not provide room for such a proportionality test and the retroactive regaining of Dutch citizenship. For this reason, the Council of State considers the RWN to be contrary to EU law. An amendment of the law is therefore necessary. To bridge the time between the ruling and the amended law entering into force, the Minister of Foreign Affairs' authority to return Dutch citizenship follows directly from EU law.

The Council of State explains that in the case of a Dutch passport application, the Minister must determine whether the applicant has Dutch citizenship (similar to the civil court procedure for determining Dutch citizenship) and they must check whether the loss of Dutch citizenship does not have disproportionate consequences 'that are in the sphere of EU law'.

Which consequences of the loss of Dutch nationality are relevant?

Only the EU law consequences are relevant for this proportionality test. Like the Court of Justice, the Council of State refers to the rights guaranteed by the EU Charter, such as the right to respect for private and family life, the exercise of the right to move and reside freely within the territory of EU Member States and the possibility to pursue professional activities there, and the best interests of the child.
Moreover, the consequences of the loss must have materialized or be reasonably foreseeable. For example, the Council of State considers it reasonably foreseeable that a former Dutch citizen of almost 18 years of age would go to study in a EU Member State.

The Council of State emphasizes that the strong connection a person feels with the Netherlands, the contacts they maintain with friends in the Netherlands and the command of the Dutch language do not have to be taken into account. After all, these consequences are not related to the loss of EU rights.

At which moment must the proportionality test take place?

In the Tjebbes judgment, the Court of Justice did not explicitly determine the moment that the consequences must be reviewed. The Council of State however explained in its ruling that when reviewing a case, the Minister must determine the EU law consequences that were relevant at the time of the expiry of the ten-year period, which therefore effectively manifested themselves or could reasonably have been foreseen at that time. Consequences occurring after that time do not need to be included in the assessment.

By doing so, the Council of State wants to avoid the need to examine all of the consequences that have occurred in the life of a former Dutch national and to prevent repeated applications to have the proportionality of that moment assessed. According to the Council of State, this would be to the detriment of legal certainty.

And now?

Over the next four months, the Minister of Foreign Affairs will have to assess, on the basis of the documents and information provided, whether in the six cases in this ruling the loss of their Dutch nationality has disproportionate consequences from an EU law perspective.
If, following the Minister's assessment, it appears that the loss of EU citizenship is disproportionate, the individuals in the six cases will regain their Dutch citizenship with retroactive effect.
The legislator will also have to amend the RWN in order to provide room for the assessment of the consequences and regaining Dutch citizenship. That much is clear.

But there is also still a lot that is unclear. For example, the Council of State did not discuss the relevance of a situation where a person cannot renounce their other nationality or cannot obtain consular protection. Do these elements not play a role in the assessment?

Which consequences should be assessed if the moment of loss only becomes clear much later, for example because someone had been issued a Dutch passport for several years on the wrong grounds?

Nor is it clear how the consequences under EU law relate to the effective link with the Netherlands. Does someone who is about to start working in Germany have more right to retain Dutch citizenship than a Dutch-speaking elderly woman who wants to return to her home country to go through her final phase of life there?

And what does this ruling mean for people who have automatically lost their Dutch citizenship by acquiring another nationality?

In the coming months and years many former Dutch citizens will turn to the Minister and it will become clear how the proportionality test will work in practice.

Have you lost your Dutch citizenship due to the ten-year period and do you experience disproportionate consequences? Please contact Elles Besselsen, Hermie de Voer or Vera Kidjan.

The new coalition agreement contains a paragraph on dual nationality and retention of Dutch citizenship.

Minors, who possess dual nationality and live outside the EU for a substantial amount of time, may lose their Dutch nationality automatically when their parents fail to renew their Dutch passports on time.

The judgment of the European Court of Justice in the case Tjebbes and Others/ Minister for Foreign Affairs concerning automatic loss of Dutch citizenship has been published.

According to Dutch law, you automatically lose your Dutch nationality when you live outside of the EU for more than 10 years. For this reason, the Ministry of Foreign Affairs did not consider the passport applications of a number of people.

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 (…)

Recently, it was decided that one of our clients, who was presumed to have lost Dutch citizenship in 2019 and had concrete plans to settle in Belgium at the moment of loss, has retained Dutch citizenship and has therefore always been Dutch.

The website nederlandwereldwijd.nl offers an online tool that you can use to find out whether you (might) have lost your Dutch citizenship and if so, how you can have checked whether you are disproportionately violated in exercising your rights as an EU-citizen due to the loss of your Dutch nationality.

Nationality law expert Hermie de Voer spoke to Eelco Keij of SNBN (Dutch Outside The Netherlands Foundation) in the first podcast of a new series. 

On 20 May 2020, the Administrative Jurisdiction Division of the Council of State determined that the consequences of the automatic loss of Dutch citizenship due to the acquisition of another nationality must also be reviewed on a case-by-case basis.

Door Elles Besselsen

On 20 May 2020, the Administrative Jurisdiction Division of the Council of State ruled that, even in the case of automatic loss of Dutch citizenship by acquisition of another nationality, it must be examined whether the consequences in the individual case are not disproportionate. The current Dutch Citizenship Act (Rijkswet op het Nederlanderschap, RWN) does not require such a proportionality test.

A Dutch national who voluntarily acquires another nationality automatically loses their Dutch citizenship. There are only three exceptions to this rule. Dutch citizenship will not be lost, if:

1. the Dutch national was born in the country of the other nationality and has their main residence there at the time of acquiring the other nationality;
2. the Dutch national had their main residence in the country of the other nationality before reaching the age of 18 for an uninterrupted period of at least five years; or
3. the Dutch national is married to a person of the other nationality.

In an earlier case, the Council of State ruled that Dutch citizens with dual nationality who lost their Dutch citizenship after having resided abroad for ten years could regain their Dutch citizenship with retroactive effect, if the consequences of the loss were disproportionate from an EU-law perspective. This concerns concrete and foreseeable consequences at the moment of loss.

This now also applies to those who have automatically lost their Dutch citizenship by acquiring another non-EU nationality.

The proportionality test in practice

The proportionality test can take place in the case of a passport application or in the case of a request to establish Dutch citizenship by a Dutch court. The proportionality of the loss of Dutch citizenship will not be examined, if the person concerned has another EU nationality. After all, in such a case there has not been a loss of EU citizenship and the associated EU rights.
The IND will assess whether the loss of Dutch citizenship has disproportionate consequences in relation to the exercise of the rights that EU citizenship brings with it, such as free movement and residence in another EU Member State, the possibility to work or study in the EU, the enjoyment of diplomatic and consular protection, and the exercise of family life and the protection of the best interests of the child.
The person concerned must substantiate the disproportionate consequences of the loss of their Dutch citizenship with as many documents as possible. The following evidentiary documents are particularly relevant:

• job offer or contract proposal;
• employment contracts;
• salary slips;
• registration in a Chamber of Commerce;
• tax returns;
• proof of enrolment in or admission to a school or university;
• proofs of ownership of real estate (deed);
• receipts for travel tickets and other travel documents
• visa’s and entry and exit stamps in passports;
• written statements by family members and acquaintances;
• extract from a civil registry;
• birth certificate;
• marriage certificate and civil union certificate; and
• proof of family relationship(s) and legal residence of the family member in an EU Member State.

If it is concluded that the loss of EU citizenship has disproportionate consequences, the applicant will regain Dutch citizenship with retroactive effect. If this is not concluded, the loss of Dutch citizenship is maintained. An objection can be lodged against this decision.

Have you lost Dutch citizenship due to long-term residence abroad or by acquiring another nationality and are you of the opinion that the loss has disproportionate consequences for you? If so, please contact Elles Besselsen for advice.

On February 12^th the Administrative Jurisdiction Division of the Council of State issued their ruling in 6 cases of persons who lost their Dutch citizenship automatically, because they held dual citizenship, resided outside the Netherlands or the EU for more than ten years, and did not renew their passport during that time.

By Hermie de Voer

If you are Dutch and you live outside of the Netherlands and outside of the European Union as a dual national, you will need to renew your Dutch passport every 10 years to prevent the loss of your Dutch nationality. The law governing this matter states: 

Adults will lose Dutch citizenship if they also have a foreign nationality and if they have their main residency outside the Netherlands, Aruba, Curaçao, and Saint Martin, and outside of the territories to which the Treaty on European Union applies during their adulthood, for an uninterrupted period of ten years...

The loss of Dutch citizenship after 10 years of residency outside of the EU will not take place, if the dual national applies for a new Dutch passport, a Dutch identity card or a Dutch nationality certificate in time. This is stated in the law as follows:

The period of ten years will be interrupted by the issuance of a declaration of possession of Dutch citizenship, a travel document or Dutch identity card within the meaning of the Passport Act. From the date of issuance, a new period of ten years commences.

Since 9 March 2014, the validity of a Dutch passport is 10 years. This means that the period of validity of the passport runs synchronously with the period for loss. Therefore you must  be very careful when exactly you apply to renew your passport in order to avoid losing your Dutch citizenship.

In plain language we usually say that you have to apply for a new Dutch passport every 10 years. However, if you apply for a renewal the day before your Dutch passport expires, your new Dutch passport would only be issued after the 10-year mark and you would lose your Dutch citizenship. For this reason, I always advise to apply for a new Dutch passport after 9 to 9,5 years so that the new passport will be issued to you within the period of 10 years. The crucial moment here is the date of issuance. You have to ensure that you have a new Dutch passport in your possession within 10 years of the expiry date.

How do you do that in times of a global corona/covid-19 crisis? When you live abroad, applications for renewal of your Dutch passport must be filed in person at a Dutch diplomatic post. These are closed until 6 April 2020 in any case.

Scheduling an appointment to apply for a Dutch passport via the digital appointment system does not seem possible, not even for a date after 6 April 2020. The following text appears on the website at various Dutch diplomatic posts on different continents: "No date(s) available for an appointment". It is striking that the Dutch diplomatic posts do not provide uniform information on their websites.

The website of the Dutch embassy in Canberra, Australia has so far been the most informative. It states that passport or ID card applications are neither being accepted at an embassy or consulate general nor at the passport counter at Schiphol, at least until 6 April 2020. However, it is still possible to apply for a passport or ID via a border municipality in the Netherlands. How this will work in practice is unclear, considering there may be no incoming flights available. 

In short, it seems that if you, as a Dutch citizen with dual nationality, live outside of the Netherlands and the European Union and your passport expires soon, you will not be able to extend your Dutch passport on time.

I advise everyone in the current situation of the corona/covid-19 pandemic to apply in writing for a renewal of your Dutch passport, ID card or a Dutch nationality certificate, at the nearest Dutch diplomatic post before your current Dutch passport, ID or declaration expires.

Make sure you can also prove that you have done this. So, send the application by registered mail or, if possible, by fax with a confirmation that the fax has arrived. This way you can prove that you have applied for a renewal or a declaration within the 10-year period and have thus tried to prevent the loss of your Dutch nationality.

I cannot guarantee that this will be sufficient to retain your Dutch nationality. What I do know is that you will lose your Dutch nationality if you do not attempt to extend your Dutch passport in time.

Hermie de Voer

Thomas van Houwelingen commented in live national radio broadcast "EenVandaag" on the issues Dutch nationals abroad experience when their passport expires.

Dutch national newspaper de Volkskrant published an article where Hermie de Voer and Thomas van Houwelingen plead for better information and education by the Ministry of Foreign Affairs of Dutch expatriates who are due to renew their passport abroad.