This case concerns the refusal of a municipality to grant Dutch nationality to an undocumented, stateless child born in the Netherlands and who has always lived in the country, because the child had not been residing lawfully in the country for at least three years, as provided by the applicable law. The Dutch court ruled that the refusal should be set aside and nationality granted. The court found that according to the 1961 Convention, only habitual residence is required. It notes that the amended Dutch Nationality Act, in force since October 2023, only provides for the requirement of habitual residence and no longer imposes a lawful residence requirement, and therefore this condition should not have been applied in this case, as it is contrary to international law
- Article 7:1a; Article 8:72, third paragraph point b; Article 8:41a Algemene wet bestuursrecht (general administrative law, national law)
- Article 6 (1) opening words and b; Article 6, paragraph 1, opening words and point q; Article 6 (3) RWN (Dutch Nationality act, national law)
- Article 94 Grondwet (Constitution, national law)
- Article 1, paragraphs 1 and 2, introductory sentence and point (b) of the 1961 Convention on the Reduction of Statelessness
The applicant is a child who has been stateless since birth, was born in the Netherlands and has always lived in the country. The applicant applied for Dutch nationality through the option procedure (a procedure enabling otherwise stateless children born in the country to acquire nationality by submitting a written 'option statement'), which the municipality refused because the child had not been lawfully residing in the Netherlands for at least three years ('admission requirement').
The applicant argues that the municipality wrongly refused to confirm the acquisition of Dutch nationality. The lawful residence ('admission') requirement should not have been applied pursuant to Article 94 of the Constitution, because it violates the 1961 Convention on the Reduction of Statelessness. Moreover, the applicant claims that the lawful residence requirement violates fundamental rights and is also discriminatory. Because it is not disputed that the applicant meets the other requirements for acquiring Dutch nationality, the municipality must confirm that the applicant has acquired Dutch nationality by submitting the 'option statement'.
The municipality refused the option statement submission to acquire nationality because the conditions provided for in the Dutch Nationality Act were not met, namely that the applicant did not have three years of lawful residence in the Netherlands. According to that Act, a person acquires Dutch nationality if the they were born in the Netherlands and have had at least three years' continuous, lawful residence in the country, and have been stateless since birth.
The court found that the relevant provisions of the 1961 Convention should be considered as universally binding provisions of international law, as referred to in Article 94 of the Constitution. They contain an unconditional and precisely defined right and they are sufficiently clear and concrete to function as an independent legal norm in the national legal order. It must therefore be assumed that these provisions of the 1961 Convention have direct effect.
The court held that the lawful residence requirement cannot be read into the provisions of Article 1(2) and Article 1(2)(b) of the 1961 Convention. The expression 'habitually resided', in the authentic English Convention text, indicates that there must be a situation in which a person has habitual residence in the Netherlands. It does not follow from the Convention text that this requires that the competent authority has agreed to this residence.
The Court refers to the Explanatory Memorandum to the Amendment to the Dutch Nationality Act and the Passport Act as well as the withdrawal of reservations to the 1954 Convention relating to the Status of Stateless Persons in connection with the determination of statelessness. According to the Amendment to the Dutch Nationality Act (in particular Article 6(1)(q)), which took effect in October 2023, the Act no longer imposes the lawful residence ('admission') requirement. Therefore, the new ground for the option procedure is in line with Article 1(2) of the Convention, in which only habitual residence is allowed as a condition for the application.
Therefore, the provisions of Section 6(1)(b) of the Dutch Nationality Act, insofar as they require the stateless applicant to have been lawfully residing ('admitted') for at least three years, should not have been applied, as this provision is contrary to a universally binding provision of international law.
The appeal is upheld for violation of the 1961 Convention and the contested decision is set aside. Pursuant to Article 8:41a of the general administrative law (Awb), the administrative judge shall, as far as possible, settle the dispute submitted to him definitively. In this case, the court sees reason to decide the case itself. The reason for this is that it is beyond reasonable doubt that the lawful residence ('admission') requirement was wrongly objected to and that it is not disputed that all other conditions have been met. As a matter of law, therefore, no other outcome is possible than that a written confirmation of the acquisition of Dutch nationality be issued to the applicant. The Court will therefore, applying Article 8:72(3), opening words and (b), of the Awb, revoke the annulled decision, determine that the municipality will issue the applicant with a written confirmation of the acquisition of Dutch nationality and determine that this judgment will replace the annulled decision.
Because the appeal is well-founded, the applicant is awarded compensation for her legal costs. This compensation must be paid by the municipality.