Divorce of convenience?
According to an AG Opinion, a divorced third-country national parent of a minor EU citizen can get a derived right of residence, even if the other parent is still in the country. Do broken families enjoy more protection under EU law than intact ones?
Children who are EU nationals would be forced to leave EU territory if their third country-national parent, on whom they depend, was denied the right to reside in the EU. This is, briefly put, the opinion of Advocate-General Szpunar in the much anticipated Chavez-Vilchez case of the Court of Justice of the European Union.
The essential question in this case, which I discussed in a previous blog, is under which circumstances a minor EU citizen would be forced to leave EU territory if his third country-national parent were to be deported. In many Member States, third country-national parent(s) of home citizens can gain the right to reside, but this is not the case in the Netherlands. This is why the court was asked to rule whether a derived right to reside exists in a series of eight cases.
In his findings, which curiously are not (yet) available in English, the Advocate-General is rather outspoken in expressing his opinion that in each of the referred cases it seems that the minor EU citizen would be forced to leave the EU if the third country-national mother was denied the right to reside. The Advocate-General holds that it is the legal, financial and affective dependency which should determine whether the presence of the third country-national parent is required for the effectiveness of the right to move and reside freely within the territory of the EU.
Even though, from the perspective of fundamental rights in general and the best interests of the child in particular, this reasoning seems valid, it may cause some uneasy side-effects in immigration law. If the Court were to follow the opinion of the Advocate-General this may very well mean that the legal protection of broken families would be stronger than the protection of intact families. If a right to reside exists for a third country-national parent who is divorced from an EU citizen spouse but has an EU citizen child, but not for a third country-national who is still married to an EU citizen, this creates an incentive to break up the relationship in order to create a right to reside. This would mean that a right to reside could be created by a divorce of convenience.
Of course whether this would actually happen depends on the level of protection of families in domestic family reunion law. However in a situation in which states argue that the right to respect for family life can also be exercised in the country of origin of the migrant family, it is rather likely that the derived residence right based on the child’s EU citizenship is stronger than domestic protection under family migration law.
The abuse of rights is a problematic issue in family migration law. Not only does it undermine genuine applications, it also creates an atmosphere of suspicion and distrust. The case law of the Court of Justice following the Ruiz Zambrano ruling unintentionally stimulates migrants with a precarious migration status to become parents of children with EU citizenship, either genuinely or through a false declaration of parenthood. If the Court were to stretch the interpretation of Ruiz Zambrano like the Advocate-General proposes – which I would favour from the perspective of fundamental rights protection – the Court and the Member States alike must be careful that this does not lead to the abuse of rights.