Proportionality test in the event of loss of Dutch citizenship due to acquisition of another nationality

_{By Elles Besselsen}

On 20 May 2020, the Administrative Jurisdiction Division of the Council of State ruled that, even in the case of automatic loss of Dutch citizenship by acquisition of another nationality, it must be examined whether the consequences in the individual case are not disproportionate. The current Dutch Citizenship Act (Rijkswet op het Nederlanderschap, RWN) does not require such a proportionality test.

A Dutch national who voluntarily acquires another nationality automatically loses their Dutch citizenship. There are only three exceptions to this rule. Dutch citizenship will not be lost, if:

1. the Dutch national was born in the country of the other nationality and has their main residence there at the time of acquiring the other nationality;
2. the Dutch national had their main residence in the country of the other nationality before reaching the age of 18 for an uninterrupted period of at least five years; or
3. the Dutch national is married to a person of the other nationality.

In an earlier case, the Council of State ruled that Dutch citizens with dual nationality who lost their Dutch citizenship after having resided abroad for ten years could regain their Dutch citizenship with retroactive effect, if the consequences of the loss were disproportionate from an EU-law perspective. This concerns concrete and foreseeable consequences at the moment of loss.

This now also applies to those who have automatically lost their Dutch citizenship by acquiring another non-EU nationality.

The proportionality test in practice

The proportionality test can take place in the case of a passport application or in the case of a request to establish Dutch citizenship by a Dutch court. The proportionality of the loss of Dutch citizenship will not be examined, if the person concerned has another EU nationality. After all, in such a case there has not been a loss of EU citizenship and the associated EU rights.
The IND will assess whether the loss of Dutch citizenship has disproportionate consequences in relation to the exercise of the rights that EU citizenship brings with it, such as free movement and residence in another EU Member State, the possibility to work or study in the EU, the enjoyment of diplomatic and consular protection, and the exercise of family life and the protection of the best interests of the child.
The person concerned must substantiate the disproportionate consequences of the loss of their Dutch citizenship with as many documents as possible. The following evidentiary documents are particularly relevant:

• job offer or contract proposal;
• employment contracts;
• salary slips;
• registration in a Chamber of Commerce;
• tax returns;
• proof of enrolment in or admission to a school or university;
• proofs of ownership of real estate (deed);
• receipts for travel tickets and other travel documents
• visa’s and entry and exit stamps in passports;
• written statements by family members and acquaintances;
• extract from a civil registry;
• birth certificate;
• marriage certificate and civil union certificate; and
• proof of family relationship(s) and legal residence of the family member in an EU Member State.

If it is concluded that the loss of EU citizenship has disproportionate consequences, the applicant will regain Dutch citizenship with retroactive effect. If this is not concluded, the loss of Dutch citizenship is maintained. An objection can be lodged against this decision.

Have you lost Dutch citizenship due to long-term residence abroad or by acquiring another nationality and are you of the opinion that the loss has disproportionate consequences for you? If so, please contact us for advice.