Leiden Law Blog

The right of residence for non-EU parents of EU citizen children: the Chavez-Vilchez case

Posted on by Mark Klaassen in Public Law , 7
The right of residence for non-EU parents of EU citizen children: the Chavez-Vilchez case

On Wednesday 10 May, the Court of Justice of the EU (the Court) delivered its much anticipated ruling in Chavez-Vilchez. In the judgment, the Court decided on the question of whether the third-country national parent of a minor child with EU citizenship must be allowed to remain in the EU, if the denial of the parent’s residence would force the child to leave EU territory with this parent, and would prevent the child from exercising its rights as an EU citizen. The case concerns the question of under what circumstances would this occur, in cases in which one of the parents is a third-country national and the other parent is an EU citizen. The ruling offers a clarification of the earlier judgement in Ruiz Zambrano, in which the issue of families in which one of the parents is an EU citizen was not discussed. For more information on that ruling, see my earlier blog post.

The preliminary reference concerns eight different cases in which eight third-country national mothers, without a valid residence permit in the Netherlands, rely on the EU citizenship of their minor child(ren) in order to claim that they have a derived right of residence in a social security dispute. Interestingly, the case before the national courts was about eligibility for child benefit and income support allowances, but the importance of the judgment is related to the residence rights of third-country parents and the determination of the interests of the child, as primary considerations in the assessment. In immigration law proceedings, their claims to a right of residence were all rejected. The mothers claimed that their EU citizen children would be forced to leave the territory of the EU, even though they have a father who is a Dutch citizen. Why the father cannot take care of the children is different in each of the cases. For instance, in one case, the Dutch father has declared that he does not want to take care of his child. In another case, the Dutch father cannot take care of his child by himself because he works full time.

The Court ruled that, when determining whether a child would be forced to leave EU territory if a derived right of residence were to be denied to a third-country national parent, it should be determined whether that parent is the actual caregiver to the child, and to what extent the child is dependent on that parent. In this context, the national authorities should take into account the right to respect for family life and the best interests of the child, as laid down in Article 7 and 24(2) of the EU Charter of Fundamental Rights. In this determination, it is not sufficient to establish that the child could live with the parent who is an EU citizen. This is a relevant factor, but should be considered in combination with other individual factors. The Court mentions the age of the child, the physical and emotional development of the child, the strength of the affective bond between the child and both of its parents, and the risks to the development and wellbeing of the child if it is separated from the third-country national parent, as factors which should be taken into account in the assessment.

The case is very interesting from two perspectives. From the perspective of the development of the rights associated with the status of EU citizenship, it is a clarification of how to determine whether a derived right of residence exists. From a doctrinal perspective, Chavez-Vilchez clarifies Ruiz Zambrano, but does not essentially change its interpretation. It was already clear that minor EU citizens may not be forced to leave the territory of the EU; Chavez-Vilchez merely clarifies how to determine whether this is the case. However, from the perspective of the application of national immigration law, the ruling can have major implications. In the Netherlands, based on the Council of State’s rather restrictive approach regarding the best interests of the child in immigration law, it is required that the third-country national parent substantiates that the Dutch-national parent is not able to take care of the child. In practice this is big hurdle to overcome, as it is assumed that the Dutch-national parent will ask for external help to make it possible to take care of the child. This ruling means that this line can no longer be followed. But the implications of Chavez-Vilchez may be more far-reaching. I would argue that, when determining compliance with the right to respect for family life, it can no longer be used as an argument against the applicant that family life can be exercised in the country of origin of the third-country national parent. In Dutch immigration law practice, this is one of the state’s key considerations in cases concerning family life with a third-country national, who does not have legal residence status or whose permit has been revoked because they do not comply with the substantive requirements for a residence permit based on family ties.

In Chaves-Vilchez, the Court has included fundamental rights and children’s rights in determining whether a right of residence for a third-country national parent can be derived from the EU citizenship of a child. It remains to be seen what the implications of this ruling will be for the application of national immigration law.

Lastly, on the first page of the ruling it is mentioned that Tomas Weterings acted as the representative of one of the applicants. Tomas sadly passed away in 2016. He was a passionate lawyer who fought like a lion for his clients and was an active follower of the case law after Ruiz Zambrano. This Court ruling would have but a big smile on his face… 

7 Comments

Janice Rappold
Posted by Janice Rappold on July 19, 2017 at 19:18

Ofcourse because we our legally married almost 7 years now. Was sucked because we went to Loket to have advice but sad to say we have different advocaat we encountered and those 2 advocaat had their own perception they gave.

But anyway, we gonna try to find good advocaat who have the passion of helping people who are needed for help to exercise their rights.

Any suggestions for good advoocat?

Many thanks.

Francisco Berninzon aka Frank Berninzon
Posted by Francisco Berninzon aka Frank Berninzon on July 19, 2017 at 00:46

Dear Ms. Rappold,
I suggest you retain an experienced Dutch Attorney to handle your case.
Personally, I find it not only humanely just, but morally compelling to favor family unity and in your case reunification with your next of kin.
In the US an offspring has the legal right to request and obtain the Immigrants Visa for their parents.
It is clear that a case as yours is not of an “anchor baby”, but then again, it needs to be handled by a qualified legal expert in Dutch / EU.
immigration law.
best regards.

Janice Rappold
Posted by Janice Rappold on July 18, 2017 at 23:31

This case is likely as mine. I am non-EU parent married to a Dutch man. I applied for Direcetive2004/38/ec in Belgium. I have temporary F card. My husband is a cross border worker. We live together in Belgium but our daughter live in Amsterdam.

My question is , as a non-EU mother,  what right should I ask ? I want to live with my daughter in Netherlands. We want our family be together not separated in this rule. I hope EU could help us in our situation.

francisco berninzon
Posted by francisco berninzon on June 22, 2017 at 16:52

I have five children- three from marital procreation and two from my spouse’s previous marriage whom I have raised since their childhood   and love equally and without distinction; I have seven grandchildren- so far-. I do not wish to sound arrogant but I guess that they all tell my daughter and in-law that I am their “favorite “granpa” for some reason. Makes me wonder why? don’t you??

If you read carefully you will note that I said ...“anchor babies”..
If you do not understand or do not know what that term means, look it up. You will then understand that I was NOT referring to the babies that were engendered through what you call ” sex rape”.-
The “non EU woman ” as you call her ( in my book the word woman suffices. No need to discriminate by geographical origin) should have the protection of the state and be allowed to obtain the immigration permits because she and the life within her, are victims of the sexual abuse perpetrated against her, due protection against which is warranted by the State, which failed in its obligation.

Different is the case of persons who purposely seek to have a child in a foreign jurisdiction in order to obtain an immigration permit. Here the procreated life ( Baby) is a means to obtain what they would have otherwise not obtained. That is the case of “anchor babies”, which are used as a “commodity” by their procreators and which are not procreated out of love for the new life.

I am certainly NOT a racist nor a bigot.
God Bless you
Shalom

 

Lady
Posted by Lady on June 22, 2017 at 12:25

So does it mean a man would sex or rape a non EU woman then impregnate her and then the woman had to leave EU with EU child because she cant get a permit??
You write it that EU kids are used for permit…..what must the mother do??

You are a racist on my opinion and i think you don’t have children and you dont want…

Shame on you..respect kids.

frank berninzon
Posted by frank berninzon on May 20, 2017 at 05:37

I will most cordially disagree.
My conviction is that “anchor babies” should not be allowed.

There are a myriad of reasons why it should not be allowed to have “anchor babies”  the predominant, in my opinion, being that it is the parents who, as such,  are inherently charged with the well-being of their child and that necessarily begins with the obligation to NOT to use the child as a pretext to obtain residency which would otherwise not be obtained.


I realize my comments will cause much controversy and I consider that everyone is entitled to their opinion.  I have stated mine and just as I will respect opinions to the contrary I would like to hope that so will be mine.

Alejandro Ponce Martínez
Posted by Alejandro Ponce Martínez on May 19, 2017 at 23:02

Important development on immigration rights served from parenthood.

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