For (former) Dutch nationals who (also) have a different nationality, it is good to know that today the Dutch nationality law (RWN) has changed. The loss of nationality through the so-called 10-Year Clock version 3 has changed into a 13-Year Clock version 1. And the EU Tjebbes proportionality test and retrospective return of nationality has now been formally written into law as an Option.

As I wrote before, these are small changes, but for some they are very important.

From a 10- to a 13-Year Clock
On our Clocks info page you will find an explanation about what this means with regard to the new 13-Year Clock, loss of nationality by RWN Article 15 paragraph 1c.

Tjebbes, EU, and Proportionality Test
What will change about this possibility to retrospectively regain your nationality? Not much. However, there is still some uncertainty about the costs, etc.

According to the European Court of Justice (Tjebbes ruling under 43), the proportionality test should be done at the time of a passport application. A passport application costs €144.60 (adults abroad). Now that a separate Option procedure has been created, the IND advises that the costs for this are €200. So they may be added from today (01 Apr. ’22). It was previously possible to apply for the proportionality test with a Declaration of Dutch Nationality at just €30. Anyway, if the costs do indeed add up it is a lot more expensive. There is of course the question and consideration whether this is in line with the Tjebbes ruling, which states that the proportionality test must be considered with a passport application. In the ruling there were no additional conditions that now seem to piggyback via the new Option procedure. We do notice that with the new procedure you can ask to be exempted from the option fees. There are no known guidelines on this yet, but we hope that it will not become a total sum and that the costs for a certificate of Dutch nationality or passport mean that the additional option costs will indeed be waived.

More documentation?
In addition to the possible surcharges, you will also be asked for an extra Certificate of Good Conduct (VOG), a passport photo, and proof of legal residence in the country where you are applying. This has not been necessary until now. The condition of the VOG relates to the already existing Option procedure and legislation under Article 6 paragraph 4:

“It shall refuse confirmation if, on the basis of the conduct of the person making the statement, there are serious suspicions that he poses a threat to public order, the good morals or the security of the Kingdom, unless there are obligations under law that are contrary to this.”

Our question is why this would also apply to this particular Option. After all, there are “obligations under law that are contrary to this“ with the Tjebbes ruling. If one would have a student debt, tax debt, fine, community service or otherwise, in or outside the Netherlands, the potential refusal would be in contradiction to the essence of the Tjebbes and subsequent rulings. Because the test concerns the period (ex-tunc) of loss, the moment of loss. The nationality must also be returned retrospectively. Considering current or recent behaviour, possible traffic fines, is at odds with this. With the proportionality tests that have been carried out to date this was also not a consideration or requirement, why now? It may be that the government has advised/implemented this incorrectly and this may still change.

Proof of legal residence in the country where you are applying is also new. This too is independent of the proportionality test and probably arises from the passport application procedure when outside the Netherlands. What if you live somewhere illegally in a (third) country. Are you going to loose out? Yes and no. This question is asked when applying for a passport in order to check if you do not have the nationality of that country. And thus by checking if you would have a residence permit from the country it can be concluded that you did not naturalise in that country. If you did get the nationality you would have perhaps lost your Dutch nationality. That’s how people who try to hide their naturalisation are (mostly) caught out.

However, if you are indeed illegal in the country, you are still entitled to a passport, or the proportionality test and Option procedure. You then need to proof in another way that you have not naturalised in that country, which is often possible, but can be very very difficult. And for former Dutch nationals who find themselves in the unique and improbable, but possible, situation of illegal residence in the Netherlands, this procedure should still be possible there too. However, there are likely to be other practical difficulties that need to be resolved. The implications of situations like this require a little more research and we’ll get to that later.

What does the new procedure look like?

0. Prepare yourself well with the correct documents/evidence, and a (recommended) cover letter with explanations. You state that with the loss of Dutch nationality your EU rights were also lost and that this was unreasonable/disproportionate in your situation. So this is not about your ties/bonds with the Netherlands. It is very important that you understand how your information and evidence influences the outcome. Some details and evidence may be used against you, or cause unnecessary confusion. Legal advice before the application is recommended (with us or anyone else).

1. Make an appointment with a competent authority
   In this case, either a diplomatic or consular post abroad (Ministry of Foreign Affairs), a Dutch (border) municipality, IND Bonaire, Sint Eustatius or Saba (BES), or the Cabinet of the Governor on Curaçao, Aruba or Sint Maarten .
2. At the appointment you submit the Option Statement, supporting documents/evidence and your cover letter. You only sign the forms at the appointment. You pay the necessary costs or request an exemption.
3. The competent authority takes a good look at your supporting documents (we hope) and accepts (and signs) the option statement. You have to wait for the decision. This can take up to 13 weeks, it can be extended once for another 13 weeks.
4. The statement will most likely be forwarded to the IND for advice. See note at 6.
5. The IND examines the supporting documents/evidence and considers your cover letter and issues advice to the competent authority. It is here that your evidence is checked, and whether they agree with you or not with reference to the legislation.
6. The competent authority formally makes the decision itself. The legislation states “the authority shall request advice from Our Minister” of Justice (IND). However, the advice of the IND can be ignored (given a good reason). Justice advises “The competent authority is not obliged to follow the advice of the IND and can deviate from it, stating reasons”.