period of at least three years of legal residence.14 The legal residence requirement in this provision is
contrary to the Netherlands’ international obligations meaning that some children born in the country
will not be able to acquire Dutch nationality, purely because their parents are irregular migrants.
Various actors and organisations including the UNHCR and the Dutch Advisory Committee on
Migration Affairs (ACVZ) have critiqued this provision and pointed out that it is contrary to both the
1961 Convention and the CRC with regard to the prevention of childhood statelessness.15 These
organisations have recommended that the legal residence requirement be dropped.16
17. Significantly, the Commissioner for Human Rights of the Council of Europe stated in 2014 that:
“In 2012, 5,641 children born in the Netherlands who were five years old or older were still
registered as being of unknown nationality. […] Another concern is that, under Dutch law, the
granting of Dutch nationality to a child who would otherwise be stateless only applies to children
who have been lawfully resident in the Netherlands for three years, contrary to the 1961 UN
Convention […] which only requires habitual residence. According to the ACVZ, registration
statistics suggest that at least 85 stateless children born in the Netherlands could have acquired
Dutch nationality by now were it not for this added condition of lawful residence. […]
the Commissioner strongly recommends that the Dutch authorities find solutions for stateless
children born in the Netherlands, notably by rescinding the requirement of lawful stay for their
acquisition of Dutch nationality. The Commissioner also recalls that in its Recommendation on
the Nationality of Children, the Committee of Ministers stressed that member states should
register children as being of unknown nationality only for as short a period of time as
possible.”17
18. Responding to these criticisms, in November 2014, the Dutch government proposed a provisional
amendment to the Dutch Nationality Act18 that aims to enable stateless children born in the
Netherlands with no legal residence to opt for Dutch citizenship.19 While the proposed amendment is
to be welcomed, it only partially addresses the above concerns, as it retains three problematic
conditions:
I.
14
The stateless child is required to have had a factual residence20 in the Netherlands of five
consecutive years;
Dutch Nationality Act, Article 6 (1) (b).
Compare Article 4 of the 1961 Convention and Article 7 of the CRC.
16
ACVZ, No Country of One’s Own (The Hague: ACVZ, September 2014), in particular Recommendation 5, 74,
available at https://acvz.org/en/pubs/no-country-of-ones-own/; UNHCR, Mapping Statelessness in the Netherlands
(The Hague: UNHCR, November 2011), in particular Recommendation 19, p. 63, available at
http://www.refworld.org/docid/4eef65da2.html.
17
Commissioner for Human Rights of the Council of Europe, Report by Nils Muiznieks following his visit to the
Netherlands from 20-22 May 2014 (October 2014).
18
Rijkswet op het Nederlanderschap.
19
Letter of the State Secretary for Security and Justice and Minister for Immigration [Staatssecretaris van
Veiligheid en Justitie] to the House of Representatives [Tweede Kamer], Kamerstukken II 2014/15, 19637, no. 1917.
Note that this is not a full-fledged legislative proposal, but it is a concrete plan to amend the Dutch Nationality Act
as a reaction on one of the recommendations by ACVZ.
20
The concept of ‘factual residence’ is comparable to ‘habitual residence’. See also UNHCR, Guidelines on
Statelessness No. 4: Ensuring Every Child's Right to Acquire a Nationality through Articles 1-4 of the 1961
15