The operation of article 16(2) of the Netherlands Nationality Act

_{By Hermie de Voer}

On 18 March 2025, the District Court of The Hague ruled in a case involving the question whether a minor, let’s call him John, had lost Dutch citizenship when his parents assumed the British nationality. The court ruled that John had remained Dutch because he fell under an exception. So far so good. However, to my surprise, the Ministry of Foreign Affairs appealed the ruling and seems to be interpreting the ground for loss more extensively than set out in the law.

What was the case about?

John was born in the Netherlands. We don’t know exactly when. The family obtains Dutch citizenship in 2012 when John is still a minor. On 29 March 2013, the family emigrates to the UK where they still live to this day. John acquires British citizenship independently as a minor on 23 June 2022.

The grounds for loss of Dutch citizenship for minors are set out in article 16 (1) of the Netherlands Nationality Act (RWN 2003):

_{16 (1) Dutch citizenship is lost for a minor:}

_{a. by judicial establishment of parenthood, recognition, legalisation or adoption by a foreigner, if he acquires or already possesses their nationality as a result;
b. by making a renunciation, if he possesses the nationality of his father, mother or adoptive parent as referred to in Article 11, paragraph 8;
c. if his father or mother voluntarily acquires another nationality and he shares in this acquisition or already possesses this nationality;
d. if his father or mother loses Dutch citizenship pursuant to article 15 (1), under b, c or d, or pursuant to article 15A;
e. if he independently acquires the same nationality as his father or mother.}

None of these grounds apply to John’s situation. Thus, he retains Dutch citizenship and then has British and Dutch citizenship.

On 8 September 2022, John’s parents also acquire British citizenship. Under article15 (1) a RWN 2003, the adult parents both lose Dutch citizenship by voluntarily acquiring another nationality. John already possesses the British nationality and is still a minor when his parents acquire British citizenship. He then lives in the UK for about 9 years. The question before the court was whether John lost his Dutch citizenship at the same time as his parents on 8 September 2022. The court properly concluded that this was not the case.

At first glance, John appears to have lost Dutch citizenship under article 16 (1) c RWN 2003: his parents acquire British nationality and he already possesses it. However, Article 16 (2) f RWN 2003 contains the following exception clause:

_{16 (2) The loss of Dutch citizenship referred to in the first paragraph shall not take effect:}

_{f. if the minor has or has had his or her main residence in the country of his or her acquired nationality for an uninterrupted period of at least five years, except in the case referred to in the first paragraph under b;}

John did not make a waiver under article16 (1) b RWN. As John has had his main residence in the UK as a minor for more than five years before acquiring British citizenship, this exception to loss applies. The court correctly concluded that this is the only criterion to be tested against and that it does not matter that John already had the British nationality when his parents became British.

Analysis

In my opinion, this is the only possible conclusion because the exception of article16 (2) f RWN 2003 applies to the ground for loss of article16 (1) c RWN 2003 which explicitly states that loss occurs in case the minor shares in the acquisition of his parents or he already possesses this nationality.

Importantly, this does not apply if the minor has acquired the other nationality at birth. In that situation, the exception in article16 (2) f RWN 2003 does not apply because it explicitly refers to acquisition, for example through naturalisation. This also follows from the example from the RWN 2003 Manual:

_{A Dutch couple emigrates to Australia, where child A is born. A acquires Dutch citizenship at birth, but also Australian citizenship as A was born on Australian soil.
Six years after A’s birth, the parents acquire Australian citizenship through naturalisation, and they both lose Dutch citizenship under article 15(1) opening words and (a) of the RWN. A does not share in this acquisition because he is already an Australian citizen. Nevertheless, he loses Dutch citizenship as he already holds the nationality his parents acquired through their request.
The exceptions listed in article 16(2) of the RWN do not apply to A.
This is because in this case there is no question of A acquiring a nationality as referred to in article 16(2) opening words and under (e) or (f) of the RWN. After all, A already acquired Australian nationality at birth [1].}

The Minister of Foreign Affairs seems to argue that the exceptions of article 16 (2) RWN 2003 only apply if the acquisition of British citizenship by the parents and the child took place at the same time. But by assuming the exception in article16 (2) f RWN 2003 only applies in a situation where the minor shares in the acquisition of the parents, the ground for loss is given too extensive an interpretation and the exception is applied too restrictively.

There is no legal basis for disapplying cases where the child acquired the nationality earlier than the parents through naturalisation. Moreover, a broader application of loss provisions is contrary to legal certainty as evidenced by Supreme Court case law. I refer to the Supreme Court ruling of 27 September 1996, ECLI:NL:HR:1996:ZC2151 and more recently of 8 September 2023, ECLI:NL:PHR:2023:492. The Supreme Court argues in paragraph 3.3 of the 1996 ruling:

_{This argument cannot be accepted as correct. The interpretation of Article 2b(2) advocated by the State would lead to the consequence, unacceptable from the point of view of legal certainty, that … which, according to the clear text of that provision, would not lead to the loss of Dutch citizenship, would nevertheless have this consequence, because the condition not appearing in the text of that provision has not been met…}

The Supreme Court repeats this argument in 2023 with a reference to paragraph 3.3 from the 1996 ruling and in slightly different words and states in her paragraph 3.4:

_{… Article 5 WNI (old) should therefore not be interpreted as covering that situation anyway….}

Our practice

Our practice also shows that children can retain their Dutch citizenship under article16 (2) f RWN 2003 even if the acquisition of another nationality took place at an earlier time than the time a parent acquired that other nationality.

Example 1

A married Dutch couple gives birth to a son: Peter. The Dutch family emigrates to Canada where the father voluntarily acquires Canadian citizenship, causing him to lose Dutch citizenship under article 15(1)(a) RWN. When the family lives in Canada for more than 5 years, mother and Peter also voluntarily acquire Canadian nationality. The mother retains Dutch citizenship under article 15 (2) under c RWN: she is married to a Canadian. Peter retains Dutch citizenship under article16 (2) a and f RWN 2003. His mother is still a Dutch citizen and he has lived in Canada as a minor for more than five years.

Years go by and his mother does not renew her Dutch passport in time, causing her to lose Dutch citizenship under article 15(1) c RWN. Does Peter retain Dutch citizenship?

At first glance, it seems that he has lost Dutch citizenship under article 16(1) d RWN, because his mother has lost Dutch citizenship under article 15(1) c: she has lived outside the EU continuously for more than 10 years and did not interrupt the loss by renewing her Dutch passport in time.

However, the exception of article 16 (2) f RWN 2003 applies to Peter. He lived in Canada for more than five years as a minor before acquiring that nationality. Despite acquiring Canadian citizenship well before his mother loses her Dutch citizenship, he can invoke the exception of this article and his Dutch passport will be renewed. This is a similar situation to John acquiring British citizenship earlier than he invokes the exception in article16 (2) f RWN 2003.

Example 2

Eric was born in the Netherlands in 2000 to two Dutch parents. In 2003, the family emigrated to Australia. In 2008, Eric’s father obtains Australian citizenship through naturalisation. As a result, he loses his Dutch citizenship. In 2009, Eric himself becomes an Australian by naturalisation. He retains Dutch citizenship because he falls under two exceptions: article 16 (2) a RWN – his mother is still Dutch and article 16 (2) f – he has lived in Australia for more than 5 years before the age of 18. In 2012, the mother also obtains Australian citizenship and therefore loses her Dutch citizenship. Even then, Eric retains Dutch citizenship because he still falls under the exception of article 16 (2) f RWN 2003: he has still lived in Australia for more than 5 years before the age of 18. Again, Eric acquired the Australian nationality before his mother and still retains his Dutch nationality. He can still invoke the exception clause of article16 (2) f RWN 2003 and his Dutch passport is renewed. His situation is also similar to John’s.

Conclusion

Article 16(2) f RWN 2003 only excludes the ground for loss in article 16(1) b. This means that only in the event that John, Peter or Eric would have voluntarily renounced their Dutch citizenship, they would have lost their Dutch citizenship. Peter and Eric were both able to renew their Dutch passports. The reason why the Ministry of Foreign Affairs is taking a different position in John’s case is unclear and possibly contrary to legal certainty.

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_{[1] In an older version of the Manual, the explanation was even more extensive: ‘He cannot be deemed to belong to categories e and/or f mentioned in that paragraph, because – where those categories mention “nationality acquired by him” and/or “at the time of acquisition” – in the context of a case such as the present one, this means the nationality acquired by the child at the time of voluntary acquisition of another nationality by the parent(s) and not the other nationality acquired by the child at birth’.}