Derived rights

By | News & Politics
European Court of Justice in Luxembourg. Credit@wikipedia

Based on a recent ruling of the European Court of Justice (ECJ), a third-country national may, as the parent of a minor child who is a EU citizen, rely on a derived right of residence in the EU. The judgment was issued following the proceedings between, on the one hand, Ms. H.C. Chavez-Vilchez and seven other third-country nationals, who are each mothers of one or more minor children who are of Dutch nationality and for whose primary day-to-day care they are responsible, and, on the other, the competent Dutch authorities.

Ms. Chavez-Vilchez, a Venezuelan national, initially entered the Netherlands on a tourist visa. Her relationship with a national of the Netherlands led, in 2009, to the birth of a child who has Dutch nationality. The parents and the child lived in Germany until June 2011, when Ms Chavez-Vilchez and her child were compelled to leave the family home. She has since then been responsible for the care of her child. She told the court the child’s father far from contributes to the child’s support or upbringing. When the Dutch authorities denied her applications for social assistance and child benefit, in the absence of a right of residence, she took the matter to court.

In assessing the case, the ECJ sought to ascertain whether the individuals involved in the situation may, as mothers of children who are EU citizens, acquire a right of residence under Article 20 TFEU – which refers to EU citizenship, in the specific circumstances of each case. If so, those individuals may be entitled, where appropriate, to receive social assistance or child benefit under the Dutch legislation. The ECJ also analysed what importance is to be given to the fact the fathers, EU citizens in this case, are living in the Netherlands or in the EU. In order to assess the situation, the Court considered paramount to determine which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. In reaching a decision, the ECJ aimed to take into account, in the best interests of the respective children, all of the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his or her emotional ties both to the European Union citizen parent and to the third-country national parent, and the effects the separation from the latter might entail for the child’s equilibrium.

The ECJ’s conclusion to allow the mothers to stay in the territory of the EU seemed focused on the assumption this option may offer their children a genuine enjoyment of the substance of their EU rights by allowing these children to continue living within the territory of the Union. In regards to the responsibility of proof, a third-country national parent is required to provide evidence on the basis of which it may be assessed whether a decision to allow him or her a right of residence in the EU might be in the best interest of the child.

Apart from marking a significant advancement for the protection of rights of third-party nationals living in the EU, the ECJ’s decision may also have the capacity of inspiring other counties, such as the United States where currently third-country nationals in the same situation may face deportation, to offer more consideration to the relation between parents and their minor children and to protect the children’s cultural and emotional connection with the country where they were born.

How may the ECJ’s decision to allow right of residence to third-country parents of EU nationals inspire other countries?

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