Single nationality in Dutch law and the proportionality test

One solid principle of Dutch nationality law is that dual nationality must be avoided. In certain circumstances, individuals 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 the Netherlands Nationality Act (NNA) on 1 April 2022. In this article we discuss how this proportionality test works in practice.

Limitation of dual nationality

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

1. voluntary acquisition another nationality;

2. prolonged stay abroad in the possession of two (or more) nationalities;

The first mode of loss does not occur 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 13 years or more 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 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, it can be taken away without issue.

Automatic loss by act of law

It is often not so much the fact of losing Dutch nationality in itself that strikes the impacted persons? the most, but the automatic character of the loss. It occurs by act of law; a decision by a Dutch authority to revoke the nationality is not necessary, not even that the authorities are informed; the facts constitute the act of loss. The victim often finds out they are not Dutch anymore only when they try to renew their Dutch passport and are informed by the consulate of this 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 euros to renew their passport in order to avoid the whole issue. Once the loss has occurred, however, there is no way back; there is no way to reconstitue the facts, and there is no right of appeal. Compare this for example with Germany, where one can request permission to retain their German nationality in advance. Obtaining the permission (a Beibehaltungsgenehmigung) means they will become a dual national; if the permission is refused, one can weigh their options and make a conscious choice between German and the new nationality.

The automatic character of the Dutch loss provisions is now mitigated to a certain extent by the Tjebbes ruling and ensuing legislation.

The Tjebbes ruling

From 1 April 2022, a new provision has been included in the?NNA?following the?Tjebbes ruling?by the EU Court of Justice of 12 March 2019. This provision covers persons who have a nationality in addition to the Dutch nationality, but who have lost the Dutch nationality due to?prolonged residence abroad?without renewing their Dutch passport in time. 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, in particular for persons from Dutch decent 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 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. They must not relate solely to one’s 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 on which Dutch nationality was lost. This means that there must have been (one of) the circumstances as mentioned above at the date of the loss of Dutch nationality. 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 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

Although this option procedure is still fairly new, our experience shows that applicants easily run into difficulties and see their 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 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 relevant in an EU context, in other words, affecting one’s EU mobility 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. Circumstances occurring after the loss of your Dutch citizenship are not relevant for the assessment.

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 effectivey make a 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 law in avoiding dual nationality. Former Dutch nationals now have a formal remedy against disproportionality of the loss of their nationality. In practice the standard to meet is high and the authorities so far seem to take a strict stance in their assessments. Case law will determine if this position can be maintained and how effective this proportionality test will turn out to be.

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Jelle Kroes