AB Raad van State, 202006910/1/V1 & 202006913/1/V6 ECLI:NL:RVS:2022:1722

Parties (including notable third parties)

The Appellant; The Secretary of State for Justice and Security (staatssecretaris van Justitie en Veiligheid) (The Respondent)

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Summary of Facts

The Appellant was born in Morocco and held Moroccan nationality from birth. She acquired Dutch nationality as a minor when her parents became Dutch nationals by Royal Decree.

In 2013, the Appellant travelled to Syria, where she married an ISIS fighter and later had two children in 2015 and 2016. During her time in Syria, she reportedly glorified ISIS and remained affiliated with the organisation even after its collapse in 2017, subsequently sharing extremist content online. The Appellant stayed in ISIS-controlled territory until early 2019, after which she was held in a Kurdish-controlled camp.

In 2019, the Appellant sought consular assistance at the Dutch Embassy in Ankara to return to the Netherlands. She travelled on a Turkish emergency document but was refused entry at the airport and was placed in criminal detention. The Rotterdam District Court sentenced her to 48 months’ imprisonment, of which 16 months were suspended, for participation in a terrorist organisation and preparation of terrorist offenses.

Following her conviction, the Secretary of State declared the Appellant undesirable in the Netherlands on grounds of public order and revoked her Dutch nationality under Article 14(4) of the Netherlands Nationality Act, citing her membership in an organisation involved in armed conflict and posing a threat to national security. The Appellant challenged both the declaration of undesirability and the withdrawal of nationality, which was dismissed at first instance.

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Legal Arguments

Legal arguments by the Appellant

The Appellant argued that the District Court erred in upholding the declaration of undesirability, as the State Secretary failed to make an individualised assessment or provide specific evidence that she posed a danger to public order, relying instead on general statements about public safety and international relations.

The Appellant further claimed that the declaration of undesirability unjustifiably interfered with her right to respect for private and family life under Article 8 ECHR. She emphasises that her past decision to travel to Syria does not negate her strong ties to the Netherlands, where her family and children live. She further exemplified her efforts to remain with her children, including escaping from a Kurdish camp with them, stating that the undesirability measure would result in prolonged separation from her children.

The Appellant lastly argued that the District Court wrongly concluded that the declaration did not affect the nationality of her children without conducting a careful and transparent balancing of interests. In her view, the court failed to weigh the impact of family separation against the stated public order concerns.

Legal Arguments by the Respondent

The Secretary of State argued that an individual assessment had been conducted and submitted relevant documents. The statements from the AIVD (General Intelligence and Security Service) (Algemene Inlichtingen- en Veiligheidsdienst), on which the decision was based, set out all the personal facts and circumstances of the Appellant, which were accepted by the lower court.

Regarding Article 8 ECHR, the Secretary of State maintained that there was no breach of the right to respect for family life. The Appellant voluntarily left the Netherlands in 2013 to live permanently in ISIS-controlled territory, distancing herself from her parents and siblings in the Netherlands. Even if interference were found, it would not be unjustified given her decision to sever proximity. Moreover, the declaration of undesirability did not alter her current family life, which was established after leaving the Netherlands, as she was married to an ISIS fighter in Syria and had two children.

Outcome

The Court first rejected the Appellant’s argument that no individualised assessment had been made, confirming that the Secretary of State and the AIVD had considered her personal circumstances and that the evidence of her affiliation with ISIS was reliable. Her criminal conviction for participation in a terrorist organisation reinforced this conclusion.

Turning to the second ground, the Court emphasised that under Article 68c(2) of the Dutch Decree on the Acquisition and Loss of Nationality (BVVN), a declaration of undesirability linked to nationality revocation must be assessed in light of Article 8 ECHR. This is because refusal of entry to the Netherlands resulting from such a declaration may interfere with the right to family and private life under Article 8, in which case the revocation would be rendered ineffective. The Court particularly emphasized that the children’s Dutch nationality, long-term residence in the Netherlands, school attendance, and close maternal relationship must be given primary consideration under Article 8, and the failure to weigh these factors rendered the decision unlawful.

Drawing on ECtHR case law (Boultif v. Switzerland, Üner v. the Netherlands, and Jeunesse v. the Netherlands) the Court reiterated that the Secretary of State must strike a fair balance between the individual’s and family’s interests and the public interest. This balancing exercise requires consideration of all relevant factors, including the seriousness of the offense, length of residence in the Netherlands, time elapsed since the offense and subsequent conduct, family situation, and especially the best interests of children, which must be given primary consideration and considerable weight.

The Court noted that it has full review powers under Article 22a(5) of the Dutch Nationality Act (‘RWN’) and may take into account facts arising after the decision. It found that the Secretary of State failed to properly consider the interests of the Appellant’s minor children, who were Dutch nationals, had lived in the Netherlands since 2019, attend school, and maintained a close relationship with their mother, as confirmed by reports from the Child Protection Board. According to the Court, this omission breached the duty to weigh interests under Article 8 ECHR and violated Articles 3:2 and 3:46 of the General Administrative Law Act.

Consequently, the declaration of undesirability was annulled. Because the revocation of nationality was dependent on that declaration, it too was set aside and the Appellant’s Dutch nationality was restored.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	European Convention on Human Rights	Article 8
Domestic	Netherlands Nationality Act (Rijkswet op het Nederlanderschap)	Articles 14, 22a
Domestic	Aliens Act 2000 (Vreemdelingenwet 2000)	Articles 67, 68c
Domestic	Nationality (Acquisition and Loss) Decree	Article 68c
Domestic	General Administrative Law Act (Algemene wet bestuursrecht)	Articles 3:2, 3:46, 8:29

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

No commentary available.