By Betty de Hart, GLOBALCIT expert and Sandra Mantu, GLOBALCIT collaborator

On 19 April 2017, the Dutch Council of State made a reference to the European Court of Justice (ECJ) concerning the compatibility with EU law of the provisions of the Dutch Nationality Act (DNA) that regulate automatic loss of Dutch nationality in case of dual nationals habitually resident abroad for more than ten years.  In this note we highlight the EU law, gender and dual nationality aspects of the case.

The reference stems from four cases in which the applicants were denied Dutch passports on grounds that they were no longer Dutch citizens. The first applicant was born and lives in Canada and possesses dual Canadian-Dutch nationality since birth; the second applicant was born in the Netherlands but lives since 1985 in Switzerland with her husband; upon her marriage, she became a dual Dutch-Swiss national; also affected is  her daughter (applicant 3) who acquired dual nationality at birth; the fourth applicant  is a naturalised Dutch citizen who cannot renounce her Iranian nationality; since 2002 she no longer lives in the Netherlands but in Iran. Loss of citizenship results from Article 15(1)(c) DNA stating that Dutch nationality is lost if the adult person possesses another nationality and habitually resides for an uninterrupted period of ten years outside of the territory of the Dutch Kingdom and of the territory in which the EU Treaties are applicable. Article 15(4) DNA provides that the ten-year period is interrupted by obtaining a certificate of Dutch nationality or a travel document or Dutch ID card.  The three adult applicants asked for new passports too late to interrupt this ten-year period. That is why the administration considered that they had automatically lost Dutch nationality. Applicant 3 was seen to have lost Dutch nationality during her minority based on Article 16(d) DNA since her mother lost that nationality.

All applicants ascertain that the decision of the Dutch authorities violates their rights as EU citizens stemming from Articles 20 and 21 TFEU. In the Rottmann case, the Court of Justice of the European Union (CJEU) explained that EU citizenship is a status worthy of protection and a source of rights in itself. Loss of state nationality leading to loss of EU citizenship falls within the scope of EU law by reason of its nature and consequences and is amendable to review in light of EU law. EU states must observe the principle of proportionality where nationality decisions affect the rights conferred and protected by the EU legal order. Thus, the Dutch Council of State required clarification from the ECJ as to whether the Rottmann test requires an individual assessment of each case of loss of nationality in light of EU law and the importance attached to the status of EU citizenship, or whether it is enough that in the process of adoption of the Dutch nationality law, the national legislator assessed individual interests in maintaining Dutch nationality against the state’s interests in limiting cases of dual nationality. The result of this legislative balancing act between individual and state interests requires Dutch dual nationals habitually resident abroad for longer than ten years to initiate a series of procedures should they wish to retain their Dutch nationality.

 

Background of Article 15 (1)(c) DNA 

Article 15(1)(c) DNA was introduced in 1985, when Dutch women finally obtained the right to pass on Dutch nationality to their children. The principle of equal treatment of men and women was seen to overrule state interests of prevention of dual nationality. However, the Dutch government did not abandon the idea of limiting dual nationality altogether.  As a ‘correction’ to the increase of dual nationality, it introduced the automatic loss of Dutch citizenship for Dutchmen who were born abroad and had been living in the country of the other nationality for ten years since majority. It was not possible to interrupt the ten-year period by applying for a declaration of Dutch nationality or Dutch passport.

After protests from individuals affected by this provision, the government decided to offer those Dutch dual nationals who had lost their Dutch nationality automatically in 1995, ten years after the introduction of Article 15(1)(c) DNA, the opportunity to reacquire it. On 1 February 2001 an option right was introduced that enabled more than 4,500 persons to regain Dutch nationality without having to give up their second nationality. At the same time, Article 15(1)(c) was amended and its territorial application extended to residence abroad in any country in the world outside of the European Union. However, the ten-year period can be stalled by applying for a Dutch passport or certificate of Dutch citizenship, or by taking up residence in the Kingdom of the Netherlands or the European Union. In the Memorandum of Clarification to the bill, only one sentence is devoted to the reasons for the automatic loss of nationality: ‘it is assumed that in that case, the ties of such a person with the Netherlands no longer has any, or no longer any significant value’.

Due to many individual complaints concerning automatic loss of Dutch nationality, the Dutch Ombudsman was prompted to investigate this issue. The Ombudsman’s report recommended that Dutch authorities step up their efforts to actively inform Dutch nationals about the loss of Dutch nationality. In light of theEuropean Convention on Nationality (ECN), the Ombudsman questioned the desirability of retaining Article 15 (1)(c). However, the government referred to Article 7 ECN that allows loss of nationality where a genuine link between citizen and state is missing. Currently, a bill is pending in its final stages to prolong the period to fifteen years of residence abroad, in light of the extension of the validity of Dutch passports to ten years.

 

EU law and the protection of state nationality

Legitimate grounds of loss of EU citizenship

In Rottmann, the ECJ accepted that citizenship deprivation on grounds of fraud expressed a legitimate public interest. It remains to be seen if in the present case the Court will discuss whether loss of nationality for dual nationals on grounds of habitual residence abroad is per se legitimate and compatible with EU law. The Dutch legislation already contains an exception for those Dutch dual nationals who habitually reside within the EU, suggesting a case of positive discrimination. One can ask if EU citizenship is worth protecting when the person is outside EU territory and whether through such exceptions EU citizenship is territorialized. The treatment of dual nationality is less straightforward than that of fraud in the acquisition of nationality. The Dutch government relies upon the 1963 Convention on the Reduction of Cases of Multiple Nationality and the 1997 ECN to claim that loss of nationality on grounds of habitual residence abroad is in line with conventional and customary law (Article 15 UDHR). However, the 1963 Convention is applicable only among a handful of states, as most state parties have denounced the chapter on multiple nationality. Article 7(1)(e) ECN allows for loss of nationality where there is lack of genuine link between the state and the national habitually residence abroad but the ECN’s explanatory report suggests the main target group of this provision is nationals who have been living abroad for generations. Moreover, there is an expectation that nationals will be informed and given the possibility to challenge their loss. The Dutch provision does not seem to live up to this interpretation of the Convention. The underlying assumption behind this ground of loss of nationality is that residence abroad loosens the link between the national and the state to an extent where nationality is no longer an accurate reflection of where the persons’ affective ties are. Based on the facts of the four cases, the applicants still maintain ties with the Netherlands that can be described as genuine as they vote, have family ties and regularly visit the Netherlands.

Proportionality

In Rottmann, proportionality was broken down in a number of elements that reflect the person’s interest in enjoying the rights stemming from EU citizenship: the consequences of the decision of withdrawal for the person concerned and family members with regard to the loss of rights enjoyed by every citizen of the Union;
the gravity of the offence justifying the naturalization withdrawal; the time lapsed between naturalisation and the withdrawal measure, and the possibility to recover the nationality of origin. Thus, it can be argued that in designing rules for loss of nationality, it is not enough to give expression to individual interests in retaining state nationality and to state interests in limiting dual nationality. Rather, the individual’s interests in enjoying EU citizenship and the rights attached to it need to be  integrated in the proportionality assessment at the national level.

Fundamental rights = children’s rights?!

The Court of Justice is expressly asked to examine the role of EU fundamental rights in protecting state nationality and EU citizenship status. The referring court considers Article 7 EU Charter and Article 8 ECHR relevant for understanding how the principle of EU proportionality should function to assess loss of nationality. In our view, Article 8 ECHR offers a mixed bag in terms of protecting individual interests in holding a specific nationality. The European Court of Human Rights (ECtHR) has confirmed that nationality is part of one’s social identity and protected under Article 8 ECHR (Genovese v. Malta). In Ramadan v. Malta, the ECtHR stated that ‘a loss of citizenship already acquired or born into can have the same (and possibly a bigger) impact on a person’s private and family life’ (Ramadan, para 85). Yet, the ECtHR did not explain whether loss of a citizenship already acquired requires a stricter test under article 8 ECHR and a smaller margin of appreciation for state authorities than being denied citizenship in the first place. ECHR jurisprudence suggests that there is no violation of Article 8 ECHR where the state put in place a procedure to mitigate the effects of a denial or loss of nationality but the applicant failed to follow it, as the applicant is seen to be responsible for taking the necessary steps to solve his legal status (Mantu 2015:119)

More protection may be derived from CJEU jurisprudence on Article 20 TFEU in the Zambrano case. The Court considers that state acts that prevent the genuine enjoyment of EU citizenship rights and force the EU citizen to leave the territory of the Union violate Article 20 TFEU. This new strand of jurisprudence has benefited minor EU citizens but not adults. This aspect is well portrayed by the national referring court in the cases discussed here when it suggests that there is violation of EU law in so far as children are concerned since they lack independence in nationality matters, but no violation where adult citizens are concerned since the failure to meet procedural steps is imputable to them. In the field of nationality law, this may mean that in order to ensure the protection of EU citizenship status, children can retain state nationality even if they reside habitually abroad but their parents cannot. We can thus ask whether the protection against loss of state nationality and EU citizenship is to be split along the lines of age or vulnerability, with minor EU citizens becoming a privileged category under EU law?

 

Missing aspects: Gender and multiple nationality 

Finally, we want to highlight two issues that are not addressed in the case. The second applicant acquired Swiss nationality automatically upon marriage to a Swiss national, and became a dual national as a result. Hence, she lost her Dutch nationality as a direct result of gender discrimination in Swiss nationality law (Studer 2001), and so did her minor child. This case shows that gender inequality is not an issue of a distant past, but still affects the daily lives of individual citizens, mainly women and their descendants nowadays (Equality Now 2016). Alas, the Council of State does not question whether it is relevant that the automatic acquisition of a second nationality by the Dutch woman who married a Swiss national was involuntary and the result of a discriminatory law. Nor is the issue examined from the perspective of existing international standards. Article 9 (1) CEDAW states that state parties shall grant women equal rights with men to acquire, change or retain their nationality. It can be questioned whether the Dutch provision of automatic loss of nationality grants women an equal right to retain nationality. A man would not have acquired the nationality of his wife in this way and become a dual national. Moreover, Article 5 ECN prohibits discrimination on grounds of sex, not only in law but also in practice. Article 14 ECN requires state parties to allow children having different nationalities acquired automatically at birth to retain these nationalities. In addition, states must allow their nationals to possess another nationality where this other nationality is automatically acquired by marriage. However, it also refers to Article 7 ECN here, so that loss of nationality is allowed when there is no genuine link between state and individual. We suggest these requirements are all the more urgent as gender equality is at stake.

Equally, the Council of State fails to acknowledge an important aspect of multiple nationality: that it is often forced upon individuals, who are not free to choose their nationality (de Hart 2012). The Dutch-Iranian applicant argued that Iranian nationality law does not allow her to give up her Iranian nationality but in the judgement this issue was not addressed. Multiple nationality is often considered as the result of free choice by an autonomous individual and assumed to have significant advantages:  easy travel, forum shopping between states and exercising voting rights in more than one state. However, the freedom of choice of individuals to determine their nationality or nationalities is limited. Automatic acquisition of nationality is the rule rather than the exception. Dual or multiple nationality is frequently the result of automatic attribution by the state, at the moment of birth, through ius soli or ius sanguinis. Even at the moment of naturalisation the freedom of choice is limited: automatic loss of the former nationality will prevent dual nationality, but if the former state does not allow renunciation of nationality, the person naturalising will become a dual national, as did the Dutch-Iranian applicant. Hence, the automatic loss of Dutch nationality after long-term residence abroad affects different groups of dual nationals in different ways. The question whether this is justified seems to become increasingly hard to escape.