Loss of Dutch nationality and the proportionality test

A solid principle of Dutch nationality law is that dual nationality must be avoided. In certain circumstances, duals nationals will therefore face the automatic loss of their Dutch nationality. However, as a result of the Tjebbes ruling by the EU Court of Justice, a proportionality test for cases of automatic loss was introduced in Dutch nationality law on 1 April 2022.

Limitation of dual nationality

The most frequently occurring cases of automatic loss of Dutch citizenship are:

1. voluntary acquisition of another nationality;
2. prolonged stay abroad in the possession of two (or more) nationalities;

An exemption to the first mode of loss applies if the individual was born and/or raised in the country of the acquired nationality, or is married to a person of this nationality. The second mode is based on having lived for at least 13 years (or until a recent change in the law: 10 years) outside the territory of the European Union during the age of majority. A new period of 13 years starts every time one applies for a new Dutch passport or a consular statement of Dutch nationality, which accounts for the purpose of this provision: if one has completely lost interest in one’s own nationality and doesn’t even care to renew one’s passport, there shouldn’t be an issue in taking it back. This view however is a bit too shortsighted and the Tjebbes ruling, implemented in statutory law in 2022, confirms this.

Automatic loss by act of law

It is often not so much the loss of Dutch nationality in itself that strikes the victim the most, but the fact that it’s automatic, without prior warning or notice. It occurs by act of law; a decision by a Dutch authority is not necessary, not even that the authorities are informed; the facts constitute the act of loss. The impacted person often finds out they are not Dutch anymore only when they try to renew their Dutch passport and are informed by the consulate of their unfortunate state of affairs.

In particular the victims of the 13 year-loss provision are often not aware of this rule and would gladly have spent a few hundred dollars for renewing their passport if they only had been conscious of the imminent problem. Once the loss has occurred, however, there is no remedy; there is no way to reconstitue the facts, and no right of appeal. Compare this for example with Germany, where one can request permission to retain German nationality in advance. Obtaining the permission to retain (Beibehaltungsgenehmigung) means one becomes a dual national; if the permission is refused, one can weigh one’s options and make a conscious choice between keeping German nationality or obtaining the new nationality. The automatic character of the Dutch loss provisions is now mitigated to some extent by the Tjebbes ruling and ensuing legislation.

The Tjebbes ruling

From 1 April 2022, a new provision has been included in the Netherlands Nationality Act (NNA) following the Tjebbes ruling by the EU Court of Justice of 12 March 2019. The provision covers former Dutch nationals who have a foreign nationality and have lost the Dutch nationality in the way described above. Through a new subcategory of the option procedure, this group of persons can request to regain their Dutch citizenship.

The option procedure is next to naturalization a way to request Dutch nationality for persons from Dutch descent and former Dutch nationals. By submitting an option request based upon the new provision (Section 6(1)(p) NNA), the application of a proportionality test can be requested, retroactively. The test examines whether the loss of Dutch citizenship was in effect disproportionate. This criterion was applied in the Tjebbes ruling, where the EU Court mentions a number of circumstances that may be weighed in the proportionality test. The Court does not provide an exhaustive list but the following circumstances must in any case be considered:

• The loss of Dutch citizenship exposes the the person concerned to limitations when exercising his or her right to move and reside freely within the territory of the EU, including particular difficulties in continuing to travel to the Netherlands or to another Member State in order to retain genuine and regular links with members of his or her family;
• Particular difficulties to pursue his or her professional activity or to undertake the necessary steps to pursue that activity;
• Whether it was possible for the person concerned to renounce the other nationality they hold;
• Serious risk that his security or his freedom to go where he or she wants will be significantly reduced because he or she cannot enjoy consular protection in the territory of the third state where he or she resides.

The Court emphasises that all the reasons given in the proportionality test must relate to EU law and not solely to one’s connection with the Netherlands. For example, having a job in one of the EU countries is a clear exercise of EU free movement rights, but having a job in the Netherlands is not. In addition, the Court ruled that the proportionality assessment must be based on the circumstances present at the moment on which Dutch nationality was lost.

In addition, consequences that were not yet present but were already reasonably forseeable at that time, can also be included in the test.

If the immigration authority (IND) decides that the automatic loss of Dutch citizenship was disproportionate, Dutch citizenship is regained retroactively. In other words, it is considered to have never been lost.

The proportionality test in practice

Our experience so far shows that applicants easily run into difficulties and often see their option requests being rejected. The IND reported in July 2023 that no less than 90% of their assessments was negative.

One reason for this is that the option request often only cites circumstances that prove the link with the Netherlands. Having an effective 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 circumstances affecting one’s EU rights. Another problem is that the circumstances put forward often do not date back to the moment when the loss of Dutch citizenship occurred and were not reasonably foreseeable at that time either.

Another red flag is the possibility to excercise the anticipated rights in the EU on another basis, e.g. if one has a residence permit in another EU country, or even another EU nationality. In that case the loss of Dutch nationality may not effectively make much difference and therefore is not disporportionate.

Conclusion

Nationality law is increasingly influenced by EU law, in particular where the reasons for loss of nationality are concerned. This has softened somewhat the strictness of the Dutch nationality law and former Dutch nationals now have a formal remedy against disproportionality of the loss of their nationality. In practice however the standard to meet is high and the approval rate of the IND is only 10%. Case law will determine if this position can be maintained and how effective the proportionality test will turn out to be.

Contact our nationality desk for personal advice: nationalitydesk@kroesadvocaten.nl
We are happy to assist!