Ever since the end of World War 2, Europe and many other countries have realised that separating children and adults from family and mother- or fatherland isn’t the right thing to do. Some countries started to change their laws to allow dual nationality, like the UK in 1948 and Norway one of the last in Europe in 2020. However, the Netherlands has to date persisted in its focus on the single nationality principle.

Nevertheless, the single nationality principle isn’t that black and white. The Netherlands was always eager to protect people/families and often the first to sign up to relevant international treaties with the United Nations (UN) and the European Union (EU), of which it is a founding member. These treaties protect individuals on their right to a family life, liberties, nationality, etc. Including some treaties where countries can allow its citizens/nationals to have dual nationality/citizenship in certain situations. Those situations have consequently been written into the Dutch nationality law as being exceptions to the Dutch single nationality principle. We have often explained how the many changes and multiple exceptions, and exceptions to the exceptions, and conditions to the exceptions, have created a complexity to the law which even many officials at times struggle with. Let alone that the public isn’t adequately informed of the law and potential consequences.

Since about the 1950’s we saw more and more international treaties, and countries, coming to an understanding that for example children who have a link and bond with two countries should not have to choose between one or another. Those children often grow up with both families, cultures and national identities. Someone compared a choice between nationalities aptly as having to have to choose for one or another parent in a divorce, the love is there normally for both.

As such the current Dutch nationality law has a few more possibilities for children to get, have and keep dual nationality. Dutch dual national children/minors also don’t have to choose between one or another nationality when becoming an adult (according to Dutch law, but some other countries may differ on this). However, the so called silent 10-/13-Year Clocks are still an (often unknown) threat to adult dual nationals. And of course, it is not all roses and sunshine, when adults accept/get (naturalise to) another new nationality this could result in immediate and automatic loss as well, unless complying with one of those complex exceptions. And Dutch law still lets some children/minors share in the loss of the Dutch nationality of their parent(s).

However, the law on this is written in such a way that we can see confusion on this point and this is where we see things go wrong resulting in injustice. While the Dutch nationality law is written to protect children from losing their nationality and allowing certain exceptions, people are often unaware on how it exactly works. Since about 2018, or perhaps earlier, two paragraphs in the Dutch nationality law which originated from one of those treaties and are meant to protect children from losing their Dutch nationality are sometimes, not always, interpreted incorrectly.

Introduction:
Convention on reduction of cases of multiple nationality and military obligations in cases of multiple nationality, 2nd protocol
(Strasbourg 1963/1993-present)

So what is this Convention on reduction of cases of multiple nationality and military obligations in cases of multiple nationality and this 2nd protocol? Well it all started with the Netherlands wanting to formalise its single nationality principle in an international setting. More or less these countries confirmed to each other that they would not allow dual nationality between its members/signatories. This was a rather strict agreement and a second protocol followed in 1993 adjusting the agreement to allow more flexibility. More exceptions allowing dual nationality. The world was changing and modernising the agreement was necessary as most of its members/signatories stepped away from trying to reduce multiple nationalities. In fact, except for two remaining countries, all other signatory countries have now denounced Chapter 1 on (dual) Nationality.

As some politicians have suggested, it is time for the Netherlands to join modernity and denounce Chapter 1 as well.

How to read RWN Art 16 paragraph 2e and 2f?

The Dutch authorities, especially the Ministry of Foreign Affairs (BuZa), sometimes ‘interpret’ the law differently than others. Or as we would say, differently than how it is written. Luckily not all officials come to the same conclusions. When submitting the same case (AU-NL minors) to three officials one stated the children were no longer Dutch, while the two other officials stated the children were still Dutch. This of course creates a different implementation of the same law, this is bordering inequality in law.

This results in Dutch national children not being recognised as being Dutch nationals. The authorities consider the children to have lost their Dutch nationality because a parent may have (inadvertently) lost his/her nationality, or sometimes through the child’s own action.

RWN Article 16, paragraph 2, preamble: “The loss of Dutch nationality, as referred to in the first paragraph, does not take effect:”
e “if the minor was born in the country of the nationality (s)he acquired and has his/her principal residence there at the time of acquisition, except in the case referred to in the first paragraph under b;”

The exception of paragraph 2e with regard to birth is made in order not to impose a choice on these children/persons between their two nationalities, and thus no choice between family ties and identities that they have been given at birth or during their formative years. It is therefore reasonable to state that such children can enjoy both nationalities.

RWN Article 16, paragraph 2, preamble: “The loss of Dutch nationality, as referred to in the first paragraph, does not take effect:”
f “if the minor has, or has had, his/her principal residence for an uninterrupted period of at least five years in the country of the nationality (s)he acquired, except in the case referred to in the first paragraph under b;”

The exception of paragraph 2f with regard to at least 5 years of residency is made in order not to impose a choice on these children/persons between their two nationalities, and thus no choice between family ties and identities that they have enjoyed for at least 5 of their formative years as a minor. It is therefore reasonable to state that such children can enjoy both nationalities.

Why RWN Art 16 paragraph 2e also applies to children who obtained the other nationality (automatically) by law at birth.

We continue to focus on paragraph 2e as this is often where mostly the interpretation results in injustices. However, the following conversely also applies to paragraph 2f and those injustices.

A) because RWN Article 16 paragraph 2e makes no difference between automatically or voluntarily acquiring the other nationality;

B) because RWN Article 16 paragraph 2e renders Article 16 paragraph 1 completely inoperative, except for paragraph 1b;

C) because the exceptions in the Strasbourg Convention (second protocol) correspond to the exceptions in RWN Article 16 paragraphs 2e and 2f.

D) Other reasons

A)
RWN Article 16 paragraph 2e makes no difference between automatically or voluntarily acquiring the other nationality.

The terms and usage of “by operation of law”, ipso jure, and “obtained/acquired”.
The term “by operation of law” (Dutch ‘van rechtswege’) refers to the entire legislation. It is sometimes used by civil servants/lawyers to demonstrate that something is or was automatically the situation “by operation of law”, through the law. But it means more than any such automatism. It means ‘as a result of the legislation’, or ‘by virtue of the legislation’. This does not mean that there is a difference here between a (voluntary) act a person actively undertakes and that has legal consequences, or where the legislation itself immediately determines (automatic) legal consequences. Let us therefore suggest the officials avoid confusion and clearly use the simple and correct terms such as ‘voluntary’ active and ‘automatic’ passive acquisition of the other nationality. Isn’t that the distinction the government wants to look at? We will return to the use of the term “by operation of law” a bit later.

In the Manual on Dutch Nationality 2003, which the government itself writes and uses, at Art 16 paragraph 1d it states:

“Here too, no loss of Dutch citizenship will occur if the child belongs to one of the categories of Article 16, paragraph 2, RWN, or if it would become stateless (Article 14, paragraph eight, RWN).”

The manual here does not instruct the official to consider whether the other nationality was acquired automatically passively or voluntarily actively. Why not? Because this makes no difference and the exception applies to both situations. We will therefore look at whether RWN Article 16 paragraph 2e specifies that the exception of loss is limited to the automatic passive ‘acquisition’ (e.g. at birth) or the ‘acquisition’ on an active voluntary basis of the other nationality.

Interpretation or confusion?
The preconception that the word “acquisition” only refers to the voluntary own acquisition (naturalisation, option, registration, etc) of the other nationality is incorrect. The Ministry of Foreign Affairs therefore states that because the children have automatically acquired the other nationality at birth and not later on by their own or the consenting parents’ own choice, they are not entitled to Art 16 paragraph 2e. However, this is not as such explained in this way in the manual under Art 16 paragraph 2e. Nor does the legislation itself make any distinction in this article and paragraph. In short, the manual doesn’t explain it that way, and neither does the legislation.

“Acquisition” (Dutch: “Verkregen”)
Focus is thus on the word “acquisition”. What is the difference between automatically passive and voluntarily active acquiring a nationality? When it is clearly your own choice and action, you ask for it and act on it, e.g. naturalization, option or registration, etc. With automatic passive acquisition, one gets the nationality without requesting or acting on it, e.g. upon birth in the country or through the parents, or when the other nationality is imposed on someone and thus acquired involuntarily.

Art 16 paragraph 2e does not state ‘automatic’ or ‘voluntary’ as a condition. If that had been the intention, the law could have been written differently. For example: … of the nationality he voluntarily and actively acquired and has…
But that’s not what it says.

RWN Chapter 2
Does the word acquisition always mean that it is/was one’s own choice? No, not that either. Just look at the title of RWN
“Chapter
2. Acquisition of Dutch citizenship by operation of law”
This chapter regulates how Dutch children automatically acquire Dutch nationality “by operation of law” at birth through their parents.

RWN Art 15 paragraph 1a
If you look at adults and their possible loss of nationality, the word “acquisition” is mentioned, for example, in RWN Art 15 paragraph 1a. But to be clear, the word “voluntary” is written in front of it.

So the law is here clear if a real distinction is to be made between obtaining nationality ‘voluntarily’ by choice and own action, or ‘obtaining it automatically’. And if this is not specified, as in exception Art 16 paragraph 2e clearly it applies to both situations.

B)
RWN Artikel 16 lid 2e stelt Artikel 16 lid 1 geheel buiten werking, behalve lid 1b;

Other exceptions to the exception?
The legislation also clearly states that the exception in Article 16 paragraph 2e of the law does not always apply. It is clearly stated that this exception of loss applies to all Article 16 paragraph 1 situations except paragraph 1b.
“…except in the case referred to in the first paragraph under b;”.
If the legislator had wanted to state that other cases should also not fall under this exception, it could have been added, for example, “except in the cases referred to in the first paragraph under b, d, and e”. But that is not what the legislator has written.
Thus, the exception of paragraph 2e, loss of nationality, applies to all cases under the first paragraph with only the exception to 1b.

C)
The exceptions in the Strasbourg Convention correspond to the exceptions in RWN Article 16 paragraphs 2e and 2f.

Convention on reduction of cases of multiple nationality and military obligations in cases of multiple nationality, 2nd protocol (Strasbourg 1963/1993-present)

The Manual on Dutch Nationality 2003 also states under Article 16 paragraph 2e:
“This ground for exception to the main rule that means loss of Dutch citizenship arises from the Second Protocol amending the Treaty of Strasbourg.”
That may have influenced the origin of this article, but this article and paragraph in the Dutch nationality law applies to all nationalities/countries, not just members. But then let’s see what was the purpose of that treaty, the protocol, and this exception!?

In this Treaty of Strasbourg, articles 1, 2 and 3 state very clearly that adults, and children, can lose their treaty country’s (NL) nationality if they voluntarily wilfully assume/acquire the nationality of another treaty country.

In Article 1 paragraph 1 “…who acquire of their own free will, by means of naturalisation, option, or recovery,…”
In article 1 paragraph 2 “… who are minors and acquire by the same means…”
Here comes the important paragraph regarding children and loss:

“Article 1 paragraph 3
Minor children, other than those who are or have been married, shall likewise lose their former nationality in the event of the acquisition ipso jure ^{(Latin: by the law itself, by operation of law “van rechtswege”)} of the nationality of another Contracting Party upon and by reason of the naturalisation or the exercise of an option or the recovery of nationality by their father and mother. Where only one parent loses his former nationality, the law of that Contracting Party whose nationality the minor possessed shall determine from which of his parents he shall derive his nationality. In the latter case, the said law may make the loss of his nationality subject to the prior consent of the other parent or the guardian to his acquiring the new nationality.
However, without prejudice to the provisions of the law of each of the Contracting Parties concerning the recovery of nationality, the Party of which the minor referred to in the foregoing paragraph possessed the nationality may lay down special conditions on which they may recover that nationality of their own free will after attaining their majority.”

Note: Returning briefly to the use of the term “ipso jure”. Naturalization etc is here also clearly described as ‘by operation of law’. Yes, by operation of law therefore also applies to situations where a person voluntarily and actively acquires a nationality. The Netherlands has signed this treaty. There should therefore be no confusion that “by operation of law” is only limited to the automatic acquisition of nationality. No, not the case here either.

This convention states that only in those situations where the parent voluntarily takes on another nationality, minor children can share in the loss of their Dutch nationality. And that is not the case where a country gives certain children the nationality by operation of law. This could be because they were born in the country even if both parents were foreigners (South Africa, Argentina, Canada, Australia, etc). Or they could get it through one of the parents’ nationality.

Note that initially not many countries were part of this convention/treaty, and those that were have mostly denounced/stopped the nationality part of it. Anyway, as the manual states, the government is looking at the inspiration that this treaty gave to Dutch legislation.

Inspiration for Dutch legislation
Let’s then look at the exceptions included in this Strasbourg Convention Second Protocol, which are the inspiration for the Dutch exceptions in Article 16, paragraphs 2e and 2f for minors, and Article 15, paragraphs 2a and 2b for adults.
The treaty states:

“Article 1 paragraph 5
Notwithstanding the provisions of paragraphs 1 and, where applicable, 2 above, where a national of a Contracting Party acquires the nationality of another Contracting Party on whose territory either he was born and is resident, or has been ordinarily resident for a period of time beginning before the age of 18, each of these Parties may provide that he retains the nationality of origin.”

Yes, a provision from which you can more or less conclude that the treaty countries make exceptions to loss of nationality if someone was born in the other country, or has lived there for a while as a minor. That sounds very familiar and is almost literally the exceptions that can now be found in the Dutch nationality law RWN Article 16 paragraphs 2e and 2f, and for adults in Article 15 paragraphs 2a and 2b.

So, if the government (in the manual) refers to this Strasbourg treaty, these exceptions must also be taken into account.

With respect to RWN Article 15 paragraphs 2a and 2b, these are pretty much the same exceptions but for adults. Also here it is not stated that, for example, paragraph 2a does not apply to those who have automatically passively acquired the nationality at birth. Again, this exception is applied to both situations.

It is clear that the treaty, and the Dutch law, considered that minor children who were born in the other country (or who had lived there for 5 years) did not have to lose Dutch nationality together with the parent. So under this treaty, the exception to loss also applies to these children.

D)
Other arguments for retention of Dutch nationality.

Dutch Nationality and Residency Act (WNI, 1893 – 1984)
Wet op het Nederlanderschap en het ingezetenschap (WNI)
In the previous version of the Dutch nationality law, the so called WNI, minors born with the other nationality did not lose their nationality if the parent would lose his/her nationality. This is acknowledged by the Dutch authorities. Within their Manual on Dutch Nationality 2003 it clearly states:

“Under the WNI, Dutch nationality could also be lost. These grounds for loss were regulated in Article 7 WNI 1892. Dutch nationality on the basis of Article 7 WNI 1892 was only lost by adults (21 years and older), except in the event that a child shared in the naturalisation of the parent, in which case a minor also lost the nationality. If the foreign nationality had already been acquired by birth in the territory (for example the US) and therefore not by joined-naturalisation, the Dutch nationality was not lost by the child.”

in Dutch:
“Onder de WNI kon het Nederlanderschap ook verloren gaan. Deze verliesgronden waren geregeld in artikel 7 WNI 1892. Het Nederlanderschap op grond van artikel 7 WNI 1892 werd alleen verloren door meerderjarigen (21 jaar en ouder), behalve in het geval dat een kind deelde in de naturalisatie van zijn ouder, dan verloor ook een minderjarige het Nederlanderschap. Als de vreemde nationaliteit reeds was verkregen door geboorte op het grondgebied (bijvoorbeeld de VS) en dus niet door medenaturalisatie, werd het Nederlanderschap niet verloren door het kind.”

We argue that the poorly construed changes to the Dutch law in 1985 and 2003 did not envision to take the same minors their Dutch nationality away. As such, and in line with the international treaties already mentioned, Articles 16 paragraphs 2e and 2f did clearly endeavour to offer minors the same protection the WNI offered as under the RWN.

The possible counter argument that the WNI was silent on this aspect does not change this. The current RWN is also silent on allowing another nationality for minors who get this at birth, through a parent, or later in life (including adults). The aspects of when another nationality is allowed is not coded into the law (silent). It is only coded into law when another nationality is not allowed and loss occurs, or the exceptions to such a loss.

Ties to the Netherlands / “Banden met Nederland”)
And with good reason. A minor who was born Dutch, likely raised Dutch and with close ties to Dutch family, friends, the Netherlands itself, should not automatically be deprived of its nationality due to the (in)action of a parent. Don’t forget that parents/adults can lose their nationality because of foreign naturalisation or because of the so called 10-/13-Year Clocks, RWN Art 15 paragraph 1c. This kind of automatic loss has been challenged by the European Court of Justice and is currently seen as disproportionate. As known by the Ministries of Foreign Affairs and Justice this loss happens often unintentional and many have lost their appreciated nationality unaware. The Nationale Ombudsman has already in 2016 made the government aware of the issues on this.

Minor’s voluntary action?
As stated before, prior to the RWN the WNI stated that a minor who voluntarily joined in the naturalisation of the parent would join in the loss of nationality. The incorrect interpretation of present law turns that upside down. This interpretation means that a minor who voluntarily naturalises will not lose his/her nationality if born in that country. But what is meant with “voluntary”? Many foreign nationality laws require the parent to include the minor in their naturalisation. Foreign nationality laws where a child can naturalise independently, without joining the parent, will mostly require the parents’ permission and is often instigated by the parent(s). Thus, children are in most cases not given the (full) independence to make their own decision on this. You can’t even argue that they as individuals voluntarily took on another nationality under WNI or under RWN. The explanation above on WNI also doesn’t make a difference if the child took a ‘voluntary’ action to naturalise, it merely makes a distinction if the child joined in the naturalisation with the parent. And the current law should also not be read as there being a voluntary action by the minor. It should, according to correct reading of the law, merely look if the minor was born in the country (2e), or lived there for five years or more as a minor (2f), in line with the same exceptions for adults.

Emancipation of a minor.
The Dutch laws allows minors in a number of aspects a certain level of emancipation. Where it comes to the nationality law minors younger than 12 can’t renounce the Dutch nationality without the consent of the parent (or legal guardian). It is clear that Dutch law does not allow a child to make its own “voluntary” decisions on this aspect. Where it comes to minors aged 12 to 16 their renunciation needs to be heard by the authorities, including the minor’s parent(s). The parent could have submitted the renunciation forms but the child has a say in the outcome, and the other way around. Either way there is no clear “voluntary” situation. Minors of 16 to 18 years can independently of the parent or guardian renounce their Dutch nationality. Here there is clearly a voluntary choice by the minor. However, where it comes to the automatic loss of Dutch nationality the minor has no say. A parent can renounce or lose his/her nationality but the 16 year old is not given a hearing or the possibility to remain Dutch. There Dutch law allows no “voluntary” aspect in the share of loss of nationality of a parent.

Family’s Unity of Nationality
The unity of a family’s nationality is often argued as to why a minor should lose his/her nationality together with the parent. However, in international context the unity of nationality is not established through the loss of nationality, but through the possibility of acquisition of the same nationality. The possibility of unity of nationality has always been about ensuring that spouses and children/minors were able to gain each other’s nationality. This is also reflected in other segments of the current Dutch nationality law. And taking a minor’s, or adult’s, nationality away will never create more unity. In fact, one of the parents could have another nationality all together. And if we just look at adults, if one of two Dutch spouses loses his/her nationality the other Dutch spouse also doesn’t join in this loss.

Intention of the law!?
This is where people’s opinions often differ. The intention of one politician may be different than that of the other politician. In addition, laws such as these are often made with compromises by the different politicians/law makers. When the wording is formulated and justified through an Explonatory Statement “Memorie of Toelichting” this does not make that itself law. Of course a court, in order to judge on any issues, could review how these laws came into existence. However, that then should be done with the utmost care. Errare humanum est. It is not the first time that courts, judges, later conclude the verdict was wrong. Where an incorrect motivation in a correct verdict becomes part of systemic injustices this is a serious problem.

How do the Dutch officials justify their (mis)reading of the law?

The situation is complex as a previous verdict of the Hoge Raad came to the correct conclusion that the children, in a ‘different’ situation, could in that case not avail of the exception in RWN Art 16 paragraph 2e. This verdict was for that case arguably correct, but is now incorrectly being read and used by officials as the justification for decisions to refuse passport applications for other children who were in fact protected against the loss of their nationality by RWN Art 16 paragraph 2e.

The end result is that some Dutch children are, incorrectly, not recognised as being Dutch and can’t therefore avail of their rights.

Other colleague lawyers and jurists report that children and parents in this situation often believe in the veracity of these decisions and just feel hopelessly abandoned and rejected. They think the government can’t be wrong and just find it unfair but don’t question further. Those few that appeal these decisions with the Ministry of Foreign Affairs often opt out of pursuing this further in what they see as potential expensive court cases against the government.

Did the Hoge Raad get it wrong? Yes and no!

No the Hoge Raad did not get it wrong when it concluded in this particular verdict under 4.2 correctly that
“It has not been shown that the children fall under one of the exceptions in Article 16, second paragraph, of the RWN, which prevent the loss of Dutch nationality.”

More or less stating that the person did not present a sufficient case. And if we look at the introduction to the case we can see that the children were indeed born in the Netherlands and as such did certainly not comply with RWN Art 16 paragraph 2e which states “if the minor was born in the country of the (other) nationality“.

For other children who do comply with RWN Art 16 paragraph 2e by having been born in the country of the other nationality it is a different matter. Officials should therefore not use this verdict as a basis for refusals where children do comply. However, it gets a bit more tricky and complex when we look at the wording behind the Hoge Raad’s motivation on this.

Yes, the Hoge Raad got perhaps confused, got it wrong, when it stated that
“According to the history of the drafting of these provisions (Parliamentary Documents II 1997/98, 25 891 (R 1609), no. 3), they relate to the retention of Dutch nationality of minors when they voluntarily acquire a foreign nationality. In the case of the children of [appellant], there is no indication of such acquiring of a foreign nationality.”

I can imagine that the Hoge Raad didn’t spend much time on its motivation. In short, when the Hoge Raad read this parliamentary document they must have focused on the explanations with respect to adults, and not considered the explanations with respect to children. Or maybe they just by mistake, and their automatisme in single nationality-principle-thinking, added the word “voluntarily” incorrectly into the verdict. We could now even start to argue that newborn babies also acquire their nationalities ‘voluntarily’ (with their parent/guardian’s permission?) and that this word here isn’t enough to make a distinction. Though, officials are reading this as a difference between voluntarily and intentionally acquiring versus automatically involuntarily receiving.

The Explanatory Memorandum the Hoge Raad referred to states that
“2. The bill finds its direct basis in particular in the Second Protocol.”
“This means that States Parties may provide in their legislation that the main rule of the Convention is broken for:”
“second-generation migrants”
“These persons may be permitted to retain their original nationality upon naturalization in another Contracting State.

With regard to the regulation of the acquisition and loss of Dutch nationality, this bill follows the line of the Second Protocol.”

“Equality in treatment of Dutch nationals who acquire the nationality of a Protocol State and Dutch nationals who acquire the nationality of another State under comparable circumstances means that the exceptions referred to in the Second Protocol must have general application. This is the basis for the amendments proposed with regard to Article 15 of the Kingdom Act.”

This concerns mostly naturalisation, the actual voluntary and active acquisition of another nationality. And this voluntary acquisition of another nationality therefore mainly applies to “the first tranche of amendments” and Art 15, which concerns adults. And that is certainly ‘also’ dealt with in the Second Protocol.

Sharing in the loss of the parent’s nationality is treated separately in the referenced Second Protocol/Treaty. In the parliamentary document it is less extensively mentioned at the time, we must therefore look at the situation of children in “the second tranche of amendments”.

“5. The second tranche of amendments contained proposals for an improved legal status of children. These proposals have also been incorporated in this bill. This concerns in particular the right of children aged twelve years and older to be heard about a proposed change in their nationality law situation, and on the other hand the right of children aged sixteen years and older to have a direct influence on their nationality law situation.”

The entire general explanation of this Explanatory Memorandum does go into organising loss for adults when naturalising, but where it comes to children it does not. It does later come back to it at the “article-by-article explanation”:

“R: Article 16”
Finally, the second paragraph, under e and f of this article, regulates the effect of the less restrictive application of the loss provisions referred to in the Second Protocol to minors who acquire a different (foreign) nationality. Here again we see that a minor retains Dutch citizenship if the minor was born in the State of the nationality of his parent and has his main residence there at the time of acquisition or if the minor has lived in the State of the Netherlands for a period of five years. the nationality acquired by his parent has had his main residence.”

in Dutch
“Ten slotte regelt het tweede lid, onder e en f van het onderhavige artikel, de doorwerking van de in het Tweede Protocol bedoelde minder restrictieve toepassing van de verliesbepalingen op minderjarigen, die een andere (vreemde) nationaliteit verkrijgen. Ook hier zien we weer dat een minderjarige het Nederlanderschap behoudt indien de minderjarige in de Staat van de door zijn ouder verkregen nationaliteit is geboren en daar ten tijde van de verkrijging zijn hoofdverblijf heeft of indien de minderjarige gedurende een periode van vijf jaar in de Staat van de door zijn ouder verkregen nationaliteit zijn hoofdverblijf gehad heeft.”

In this brief explanation it is not explained whether this is only relevant for the voluntary active acquisition of another nationality and/or the automatic passive acquisition of nationality at birth, etc. The word acquisition “verkrijgen” does not specify this aspect. And thus we come back to how the legislation should be read, as we set out above.

Conclusion

In the above we have already drawn several conclusions confirming that such children, born with the other nationality, or having lived in the respective country for over 5 years, do not share in the loss of nationality of the parent, and still have the Dutch nationality.

Seen the protections for children in international treaties, seen the realisation that children should not be forced to choose between nationalities, it is very bizarre that such incorrect interpretation and reasoning with respect to Art 16 paragraph 2e (and 2f) would only refer to voluntary active acquisition of the other nationality. As such a child which automatically and involuntary acquired the nationality at birth, or even if imposed unsolicited by the foreign state, this child is cast out and left empty-handed, not protected. And with this reasoning the child who does actively and wilfully acquire another nationality is protected against loss of his/her Dutch nationality.

In short, spontaneous attachment to the country of birth and country of residence does not lead to protection, while the conscious choice of the child to adopt the nationality of the country of residence does protect the bond with the Netherlands. The reasoning is incorrect, does not match the intention of the legislation and convention/treaty, creates an unwritten legal inequality, and in short is not a correct reading of the legislation.

We ask officials to read the law correctly, and ask politicians to consider clarifying this in a future amendment. Of course, as already proposed in the early 1980’s, 1990’s and 2000’s to date, if the Netherlands would allow dual nationality, as most European and many other countries do, these kind of issues would not exist. However, if a future modernisation of the law would allow dual nationality then we hope that victims of loss of their nationality will get better opportunities to get their nationality back. Current possibilities are very restrictive and made practically difficult, unlike intended in 1985 and 2003 when this was advised as going to be “easy possibilities to repair the nationality”.

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Note:
Please note that if such children or young adults are incorrectly refused or delayed their passports this can later (inadvertently?) result in the actual loss of their Dutch nationality through the so called 10-Year Clock. This 10 Year Clock loss of Dutch nationality can only be prevented in a few specific ways and we already know of cases where due to government processing delays, or incorrect conclusions as above, people have lost their Dutch nationality. In these unfortunate situations the person’s application, request and any efforts to maintain a bond with the Netherlands/family, to show his/her appreciation for the nationality, only has effect if the officials issue the passports, or one of the other documents, in time. There is here an unbalanced dependency on the government’s actions. That the Clock has recently changed to 13-Years will prevent some of that loss in the future but does not allow any easier possibility to repair the nationality.

Terminology Note:
Dual nationality is the common term used. However, this does not mean that the law limits itself to two nationalities. With a number of (expat/international) families we can sometimes see three or more nationalities. Thus, when we mention “dual” nationality we really mean, another, an extra, nationality.

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Are you a lawyer and do you agree with our above conclusions then we like to hear from you.

Kris von Habsburg, Habsburg Legal Services ltd
Antonietta Sgherzi on behalf of the Stichting GOED
mr. A.G. Kleijweg, Advocatenkantoor Kleijweg
mr. Julien Luscuere, Lawyer, specialist in labour and skilled migration/EU-law and family reunifications. Chair of the SVMA. luscuere.eu
Mrs mr Wytzia Raspe, Legal Adviser (jurist) and blogger of www.vreemdelingenrecht.com
gereserveerd