Am I eligible for a Dutch passport through my biological father and paternal grandparents?

Question

My biological father as well as his parents were born in the Netherlands. My father lived in South Africa for 18 years and never took up the citizenship of South Africa. He has since returned to the Netherlands. His parents have always lived in the Netherlands. I was born in South Africa in 1996. My mother is South African. My mother and biological father were married at the time of my birth in 1996. Subsequently my parents divorced and my mother's new husband adopted me. Am I still eligible for a Dutch passport through either my biological father or my paternal grandparents?

Answer 1

Disclaimer

Dutch nationality law has changed several times over the last few decades, and the controlling law is that in force at the time of your birth and at the time of your adoption. In particular, the exception mentioned below was added to the law at some point before 2003, so whether your adoption occurred before or after that point may be significant. There is also a matter of interpretation with regard to the exception, and I am neither a lawyer nor familiar with principles of statutory interpretation in Dutch law.

Introduction

The answer largely depends on whether your stepfather adopted you before your 18th birthday. If not, you are almost certainly Dutch; if so, it is not clear to me whether you are Dutch.

(The answer also depends on whether your adoptive father is South African, but I assume that he is. I also assume that you have always resided in South Africa.)

Analysis

Your paternal grandparents are not particularly relevant to the analysis; the first important fact is that your father was Dutch at the time of your birth, which means that you were Dutch when you were born. The next question is then whether you have lost your Dutch nationality. This may have happened when your stepfather adopted you.

Adoption at 18 or older

If your stepfather adopted you after your 18th birthday, you did not lose your Dutch nationality. In this case, you are Dutch and can get a Dutch passport, but you will lose your Dutch nationality on your 28th birthday unless you do one of the following:

• renounce your South African nationality, or
• live for an uninterrupted period of 1 year in the Kingdom of the Netherlands or the European Union, or
• Receive a Dutch passport or identity card, or a declaration of Dutch nationality.

In the third case, a new 10-year period will begin when the document is issued; in the second case, a new 10-year period will begin if you move somewhere outside the Kingdom of the Netherlands or the European Union. At the end of the ten-year period, you lose your Dutch nationality unless you again reset it by one of those actions. (There are some other exceptions to the 10-year period that apply only in rare cases; it's not necessary to consider them if you always get a new passport with enough time before your old one expires.)

Adoption before 18 years

If your stepfather adopted you before your 18th birthday, it is not clear to me whether you are Dutch. There are several relevant articles in the Rijkswet op het Nederlanderschap.

The first is Article 14 section 4, which basically says that a minor loses Dutch nationality through the dissolution of the legal family relationship on which the Dutch nationality is based. An adoption normally breaks the family relationship between the child and the birth parent; if that happened with you then this paragraph would apply.

The second is Article 16, section 1(a), which says that a minor loses Dutch nationality when being adopted (among other things) by a non-Dutch parent, if the child gains the nationality of the non-Dutch parent or already has it. Since you were already South African and were adopted (I assume) by a South African man, this paragraph may apply to you.

I say "may" because of the third relevant portion of the law, Article 16, section 2, which regulates exceptions to section 1. Paragraph (e) provides an exception for a minor who was born in "the country of the acquired nationality." This would clearly apply to you if you had acquired South African nationality through the adoption, but since you already had it, you did not acquire it at that time, and it is not clear whether this exception applies. It may apply because you acquired South African nationality at the time of your birth, or it may not apply because you did not acquire South African nationality at the time of your adoption.

Furthermore, as mentioned in the disclaimer above, it is also not clear whether this exception existed at the time of your adoption, because I do not know when it was added and you have not said when you were adopted.

Conclusion

If the adoption occurred when you were younger than 18 years, therefore, both of the following must be true for you to be Dutch:

1. Considering Art 14(4), the adoption did not sever the legal parent-child relationship between you and your birth father.
2. Considering Art 16(2), this text was added to the law before your adoption, and it also applies in cases where the child would lose Dutch nationality because of already having the same nationality as the adoptive parent.

Advice

Ask the consulate to make a determination. You can start either at Applying for a Dutch nationality certificate or at Applying for a passport or identity card.

The certificate costs €30, while a passport costs €130.77. I would therefore apply for the certificate first, unless the consulate will make the determination of your nationality before you submit a formal application, in which case I would just apply for the passport (I don't remember when I had to pay the fee when I did this about 15 years ago).

You may also want to talk to a Dutch lawyer who specializes in nationality law, immigration law, or family law. You might be able to establish that somehow your adoption did not sever the legal relationship with your birth father. Perhaps the adoption was not valid under Dutch law even though it was under South African law. A lawyer in the right area of practice should also be able to clear up the question of whether the Art 16(2)(e) exception applies to a child who already has the nationality of the adoptive parent.

Don't wait. If you reach your 28th birthday without taking care of this, you will certainly lose your Dutch nationality if you didn't lose it earlier.