It’s been almost a year since we reported on this. What does it even mean? The Grand Chamber of the Court of Justice of the European Union (EU) stated that automatic loss of Dutch nationality was not proportionate. Of course, the EU has nothing to say about the nationality legislation of member states such as the Netherlands. However, with EU agreements the Netherlands accepted that it would be proportionate, fair. And since with the automatic loss of Dutch nationality EU citizenship is also lost, the Court of Appeal nevertheless ruled on this and found the automatic loss to be disproportionate. The ruling was therefore accepted by the Dutch Supreme Court and instructed the government to make use of this verdict to retrospectively return Dutch nationality to those to whom this applies (already possible). The retrospective aspect, with retroactive effect, is quite unique for Dutch nationality legislation.
Government ignores the advice of the Advisory Division of the Council of State and NIDV.
Abandoning the single-nationality principle
On advice from many citizens and interest groups to abandon the single-nationality principle (with exceptions) the government states that this is more than the verdict/ruling and purpose of the proposed change of law. Admittedly, if we only look at the verdict then there is technically something to be said for such reasoning. Nevertheless one has to realize that if we keep making such small adjustments that the legislation may become somewhat better and more reasonable, but also a lot more complicated. A professor has already called the nationality legislation a “monstrosity” because of the many adjustments, conditions and exceptions. The legislation is so complex that civil servants often do not understand it properly and at times provide incorrect information. We see the results of many such reports of issues, such as the 2016 advice of the National Ombudsman. Nevertheless, yes technically, politicians now have to consider this limited proposal to change the law and it is certainly a step in the right direction.
Version 4, from a 10-Year Clock to a 13-Year Clock.
Well, you would be really unlucky on the thirteenth year! Perhaps the government thinks this is just as funny as the rather silent amendment of the law on 01 April 2003? This introduced the last and current version of the 10-Year Clock, Version 3. As a result, thousands of people unknowingly and unwittingly lost their nationality in 2013. Bad jokes!
On our advice to move the point of loss, the so-called 10-Year Clock, to 15 years or longer, the bill only sets 13 years. Total abolition of the 10-Year Clock is of course an Utopia! This proposal is of course better than the current 10 years which, more or less coincidentally, corresponds to the validity of an adult passport. This will prevent a number of people who don’t (or cannot) renew their passport in time, from losing their nationality. That is certainly good, but could be better. Please note, it is not the date of application but the date of issue of the passport that restarts that pesky 10-Year Clock. Of course that also could have been different. If it is stated that one must show that one wishes to remain a Dutch citizen, then in our opinion the application date is good enough, but legally currently not the case. Maybe something to consider to adjust as well?
Other advice and even better legislation
Other advice and proposals to make this proposed change of law more reasonable and proportionate has not been adopted by the government either. Such as, for example, preventing unwanted loss of nationality in the first place, instead of repairing it later via a test. But unfortunately the answer is no, so it is now up to politicians to give direction to this proposed change of law. Here you will find the explanation and reasoning of the government (in Dutch). In the reasoning, the government quite often states that other reasonable adjustments go further than the legal rulings and that they want to limit themselves to the rulings. This sounds technically reasonable, but to adjust the 10-Year Clock to a 13-Year Clock is not something we can find in the legal rulings of the Court of Justice of the EU and the Dutch Supreme Court. Fortunately, the government can be a little reasonable on this point. But then why not for the other points as well? To what extent were advice and responses to the previous consultation seriously considered? Or were they instructed to seek excuses and was the legal team instructed to change as little as possible to this complex and unreasonable legislation that results in the loss of the Dutch nationality every day? (Rhetorical question, action speak louder than words).
Despite our advice and criticism we see this as a step in the right direction. Attention, NOW ALREADY POSSIBLE!
What this proposal and change of law will do is to codify the court rulings into our nationality law. Note! You can already use the Proportionality Test and thus get your nationality back retrospectively. So, for once there is no real rush to pass this change of law (Except maybe with regard to the proposed 13-Year Clock.). It is therefore good that you, the government, the media, politics and society as a whole take a good look at this and ask yourself, what is reasonable, what is proportionate, what is fair??? Unexpected loss, automatic loss? And then is it right for this change of law to be fair to some, but not for everyone, legal inequality??
If you want to use the current proportionality test legal advice/assistance is recommended. Unless you can clearly demonstrate with documents and (official) evidence that you were exercising your EU Freedom of Movement rights at the time of your loss of Dutch nationality. We see quite a lot of people who do not understand how this works and what is needed. Please note, this is only possible for loss of nationality after the EU Freedom of Movement rights came into effect, i.e. only after 01 November 1993. You cannot use this if you had, or acquired, an EU nationality. Because then you would still have kept your EU Freedom of Movement rights through that other country. There are other things to watch out for. Government inquiry form and information (in Dutch) here. We will be updating our own info pages on this.
How many?
Because the Netherlands government and its bureau of statistics cannot properly determine how many Dutch people live abroad, nor always know if they also have another nationality, or have lost their Dutch nationality/citizenship, we must therefore be careful with estimates. The government does measure that there are about 2000 passport applications per year that are rejected because the person cannot prove to be Dutch, or is deemed no longer to be Dutch (nationality loss). Since the major amendment of the law in 1985 and the 2nd problematic version of the so-called 10-Year Clock, this calculates of about 72,000 cases of lost nationality. But that number could even be much higher. After all, many passport applications are not even accepted and people are often sent away by telephone or at the counter. Sometimes passports are confiscated without any paperwork or process. Or people read on the government website that they are no longer Dutch and assume that the information is correct (not always the same result for everyone). This proportionality test and this change of law is also limited to a much smaller number of former Dutch nationals, namely only those who acquired or had a non-EU nationality and made use of their EU free movement rights. How many of those are there?
What next?
Most changes of law take their time (slow). At the moment it is still early days for the process of a bill. Today the Regulations Committee of the House of Representatives discussed this proposed change of law. They will put it on the relevant agendas and only later will it end up on the table of the members of parliament themselves. By then we will probably see some more actions by interest groups and organisations to give this the right attention.
Kris von Habsburg, on behalf of Nederlanders in den Vreemde (The Dutch in Foreign Parts) and Habsburg Legal Services ltd
Arend van Rosmalen LL.M., Mynta Law
Mr. A.G. Kleijweg, Immigration Lawyer Advocatenkantoor Kleijweg
Mevrouw mr Wytzia Raspe, legal adviser immigration and blogger of www.vreemdelingenrecht.com
Antonietta Sgherzi on behalf of the Stichting GOED
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