The Court of Justice of the European Union (CJEU) has delivered an important clarification on the EU law rights which non-EU citizens derive by virtue of the fact that they are the parents of EU citizen children. The CJEU has previously held that EU citizenship law requires national authorities to consider whether refusing to grant a right of residence to non-EU parents would in effect also compel the citizen child to leave EU territory. In handing down its judgment in the most recent case on this issue, the CJEU has held that the relevant test in these situations should focus on the best interests of the child.
Article 20 of the Treaty on the Functioning of the European Union (the TFEU) governs the principle of EU citizenship, and it has been interpreted by the CJEU as conferring a derivative right of residence on third country nationals who are the parents of EU citizen children in certain cases. This principle was first set out in the 2011 Zambrano case, in which it was held that EU citizenship law precludes any measures which would have the effect of depriving EU citizens of enjoyment of the rights conferred on them by their status - in that case, it precluded the expulsion of non-EU citizen parents of Belgian children as their removal would also result in the children’s removal from the EU. Subsequent case-law limited the Zambrano principle to cases where the parent concerned was the ‘primary carer’ of the citizen child.
Each of the situations at issue in the main proceedings concerned a third-country national who, over the periods relevant to the rejection of applications for child benefit or social assistance: was staying in the Netherlands without holding a residence permit; was the mother of at least one minor child of Netherlands nationality who lived with her; was responsible for the primary day-to-day care of that child, and was separated from the father of the child, the father also being of Netherlands nationality and acknowledging the child as his. However, there were differences, with respect to the relationships between the parents and the children in terms of custody and contributions to costs of support, the situations of the mothers in terms of their right to stay within the territory of the European Union, and the situations of the minor children themselves.
The ‘primary carer’ test was at issue before the CJEU here. The applicants argued that as primary carers, they derived rights of residence from Article 20 and Zambrano. The Dutch government countered that they were not automatically classified as primary carers as in each case, it was possible for the children’s other parent, the Dutch citizen, to take responsibility for their day-to-day care. Delivering a preliminary ruling, the CJEU held that the fact that a child is dependent on the non-EU parent does not in and of itself lead to the conclusion that the child would have to leave the EU if that parent was denied residence rights. The Court accepted the Netherlands’ argument that the presence of an EU citizen parent who is capable of caring for the child was a significant factor to be assessed, but stated that in making any assessment, national authorities must have regard to the EU Charter of Fundamental Rights, which guarantees respect for family life and that account will be taken of the best interests of the child. The CJEU held that account must be taken of all circumstances, and for the first time held that these should include the extent of the child’s physical and emotional development, emotional ties with both parents, and any risks relating to separation.
The CJEU accepted the Netherlands’ argument that the burden of proof lies on the non-EU parent to show that being refused residence rights would deprive the citizen child of their rights, but held that national authorities must undertake inquiries which take into account all factors pertaining to the child’s best interests, so as to not undermine the effectiveness of EU citizenship rights.
Click here for the full judgment in Chavez-Vilchez and others.