Automatic loss of Dutch citizenship and the proportionality test

The Tjebbes ruling
From 1 April 2022, a new provision (Section 6(1)(p) RWN) has been included in the Netherlands Nationality Act following the Tjebbes ruling by the Court of Justice of the European Union in February 2020. This provision covers persons who have a second nationality in addition to the Dutch nationality, but who have lost the Dutch nationality due to long-term residence abroad without renewing or applying for their Dutch passport in time. Through a new option procedure, this group of persons may be able to regain their Dutch citizenship.

By submitting an option request, the application of a proportionality test can be requested. This must examine whether the loss of Dutch citizenship was disproportionate. In the Tjebbes ruling, the European Court mentions a number of circumstances that may be weighed in the proportionality test. The Court does not provide an exhaustive list of circumstances that can be taken into account in the assessment. There are however circumstances listed that must be considered in the assessment in any case. The circumstances listed are as follows:

• The loss of Dutch citizenship restricts the person concerned from exercising his right of free movement and residence in the EU territory. This leads to particular difficulties in continuing to travel to the Netherlands or the EU to maintain actual and regular ties with family members;
• Special difficulties in carrying out his professional activities;
• Special difficulties in taking the necessary steps to carry out professional activities;
• Whether it is impossible for the person concerned to renounce the other nationality they hold;
• Serious risk that his security or his freedom to go where he wants will be significantly reduced because he cannot enjoy consular protection in the territory of the third state where he resides.

The Court emphasises that all the reasons given in the proportionality test must relate to EU law. Those reasons must not relate solely to your connection with the Netherlands. For example, having a job in one of the EU countries is a clear exercise of freedom of movement based on EU law, but having a job in the Netherlands is not.

In addition, the Court ruled that the moment of assessment is the moment Dutch citizenship was lost. This means that there must have been (one of) the circumstances as mentioned above at the date of the loss of Dutch citizenship. If the consequences were not yet present at the time of the loss of Dutch citizenship, but were already reasonably foreseeable at that time, then these can also be included in the test.

The IND may decide that the automatic loss of Dutch citizenship is disproportionate. In that case, Dutch citizenship is regained retroactively. In other words, Dutch citizenship is considered never lost.

The proportionality test in practice
Although this option procedure is still fairly new, our experience shows that applicants run into many difficulties in practice, resulting in option requests being rejected.

One reason for this is that the option request often only cites circumstances that prove the link with the Netherlands. Having an affective bond with the Netherlands or speaking the Dutch language is insufficient to consider the loss of Dutch citizenship as disproportionate. The grounds put forward must always relate to Union law circumstances.

In addition, the circumstances put forward must have occurred at the time of the loss of Dutch citizenship, or have been reasonably foreseeable at that time. Even if you only find out years later that you have lost Dutch citizenship. Circumstances occurring after the loss of your Dutch citizenship are not included in the assessment.

Should there nevertheless be an opportunity for you to stay in the EU (with a residence permit, for example), in practice, it is assumed that the loss did not have a disproportionate impact on you.

Have you also lost or think you have lost your Dutch nationality due to long-term residence abroad with dual nationality? And did you not renew or apply for your Dutch passport in time? If so, you may be eligible for the option procedure under the Tjebbes ruling. We know from experience how the Dutch government (Ministry of Foreign Affairs and IND) assesses these cases.

Do you have questions about this or want to know what documents are required to make your application successful?

Contact our nationality desk for personal advice: nationalitydesk@kroesadvocaten.nl