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

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

The EU Court of Justice explains the Zambrano doctrine: what matters is not just whether an EU-citizen parent could take care of the child, but whether the child has a relationship of dependency with the non-EU parent.

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…

21 Comments

Babatunde Rabiu

I arrived in the Netherlands as a student in 2009, finished my studies in 2015 and I was given a zoekjaar orientation visa (1 year) to find a job. I started working in 2015, and before my zoekjaar permit expired I met a Dutch girl and I was able to have 5 years permit Cos of our relationship.
Unfortunately, our relationship broke few weeks ago and I haven’t completed the 5 years permit that was issued in 2016. I have only had it for 4 years, but we have a daughter together last year who’s a Dutch citizen while we were living together.
I received letter from IND that I should write and proof why my permit shouldn’t be revoked, and they mentioned that they could see I have a Dutch child in the system.

They are asking me to proof that if they revoked my permit, my child will have to leave the Netherlands. Me and my ex have a good job, and I have lot of photos and events to proof my relationship with my daughter. IND also requested a letter from my ex that we agreed on coparenting, even though we verbally agreed, but I don’t know if she would wanna hurt me by seeing me leave the Netherlands. Also I have been working since I received the zoekjaar permit until now, and I have been advised that I might be able to apply for independent permit but only in August, because that’s when it would be 5 years that I have been working here.

I have always contributed equally to the upbringing of our daughter, and I really want to be in her life. Do you think I have a case, if my ex decided to be mean in her approach to my permit being revoked?

Thanks

Rene Boom

I am Dutch by birth but have been freelancing from Thailand since over 7 years. This causes me to not meet the requirements for a traditional MMV visa right away, my only option seems to be separated from my 1 year old child and wife for up to 3 years, before I can get her a MMV visa.

At the same time, in Thailand I can not get a long stay visa either, with current military government and little human rights, it is stressful and I need to leave every 90 days aside of spending 400 euro getting a new visa / travel costs etc.

Would I be able to have rights on the Chavez-Vilchez example? It sounds like that to me.
Any response would really be appreciated as I am pretty much living endangered, if any of my income would fall away, I would be separated. This while I can get a house, new job etc within weeks back home in Netherlands.

M Bellechhab

If you are married, your child will automatically have Dutch nationality. And your wife does not need an MVV. She can apply for a visa through the Chavez-Vilchez judgment. She will then receive a facilitating visa within 3 weeks without difficulties. The visa application is free. I can help you with the application. check the Citizens Office facebook page for tips.
We have helped many non-EU parents with visas and residence permits. The procedure is simple and easy.
1 Marriage certificate (This is not required. If you are not married)
2 Child birth certificate where clearly your wife's name is written
3 copy of your child's passport
4 Doctor's statement that your child cannot live without his / her mother.
5 Few family photos.
(Don't forget to legalize the Thai documents)

arrecho

Based on this reply, I wonder if you could provide me some guidance. Allow me to provide some context:

I am a citizen of Venezuela, as such a third country national. My wife is a citizen of Lithuania. We have been married for 7 years since November 2012. We have a baby daughter who is also a citizen of Lithuania and who will be 4 years old in July 2020. During these years, I had a Lithuanian residence permit as the family member of an EU citizen. In August of 2017, we moved to Austria.

Here, in September of 2017, I received an Austrian residence permit as the family member of an EU citizen for 5 years (until 2022). At the moment, I am a job-seeker here in Austria, hence I don't have a job now. I believe she has started divorce proceedings.

Furthermore, as of right now, my wife is on kurzarbeit, I am registered as a job-seeker in AMS and we are receiving mindestsicherung (social aid, which started receiving in April 2020 due to the Coronavirus situation) from MA40 during this coronavirus situation. How does that affect my situation as my wife submitted the divorce petition already? Does the fact that my daughter of 4 years old (an EU citizen who was born in Lithuania) and that fact that we now all have the same address and living in the same hauptwohnsitz (primary residence) here in Vienna, makes any difference?

My question is as follows: what would happen if for some reason, my wife divorces me here in Austria? Would my Austrian residence permit be cancelled and I would be deported? Do I have any rights since my children is a Lithuanian citizen but we are living in Austria?

Thank you so much for your attention. I look forward to your reply.

Kind regards,

Barnabas

Please I have a problem and need your advice am from Ghana and my girlfriend is a Dutch we have a daughter one is 1 year old. Our daughter is in a foster home due to my girlfriend have a depression I came into The Netherlands with facilitation visa to apply for Chavez-Vilchez so that I can take care of our daughter. I apply Chavez-Vilchez and the IND reject my application saying I don't have contact or relationship with my daughter. I have been seeing our daughter once in a month with my girlfriend who is now stable so we took pictures showing that I have been seeing our daughter and did appealed again to the IND.For the second time they reject my application saying that since our daughter is in the foster home she is save so there is no need to give me resistance permit to stay in Netherlands.Please I need your help and advice on what to do next. Hopping to hear from u

M Bellechhab

If you have not recognized your child, you must do this as soon as possible at the municipality. Take a lawyer and have your parental authority determined through legal proceedings. You have not had the opportunity to take your child on yourself.
It is unjustified that your residence permit is refused.
And have your girlfriend declared healthy by a doctor and claim your child in court.
So that you can take care of your own child

Liam

My girlfriend and i have only known each other 4 months. She is a UK citizen and im an Australian citizen. She has recently fallen pregnant and i was wondering is there anyway i could get living and working rights in the UK to help provide for my girlfriend and child? Thankyou

Mubeen

Hello I want information my father have permanent residence spain and my age is 20 and i am enter in spain by illegal way can i get spain residence through my father residence ...

Nana Fori

I have article 20 residence permit in Spain and my partner is pass away last 2years i want to ask if i can work in holand pls if somebody can help me

Sara

The Netherlands have another ridiculous ruling;

If you are being raped by a Dutch male, who even denies being the father, the child born out of rape is not allowed to leave the country.

Therefore, if you are being raped by a Dutch, it is not wise to allege a complaint at an Dutch police-officer!

Just do not forget that the EU-law and ECHR are consistently ignored in the Netherlands. So as a rape-victim you shall be punished severe!

Josh

Hi please am Joshua and has my residence in Spain,I have a girlfriend from the Netherlands and she is pregnant and leaves and work in the Netherlands,we are expecting our child in some months time please I want to know if my born child can help me change my residence in Spain to the Netherlands residence?thank you

Maarufkhel

Hi i wanted to ask. Me and my son are both british living in germany however my partner and i are unmarried and he is a refugee. How can we get home to stay with us and exercise the same rights as us. We tried through my son to get a resident card but they said no because he is a minor and already has one parent to care for him. We cant get married because of the lack of documents from my partners side. What would be the next step? Is there a loop hole for us?

Sophie

Hi,

Thank-you for briefly writing up this case on EU immigration law. This has helped me understand my own position as a TCN parent in a similar position.

Best wishes, S.

Remelou Reyes

Dear Sir/Madam,
Just wondering maybe i can find some answer to my case. Hoping i can get some help or advice. I'm a father of my 4 year old daughter who lives in the netherlands with her mother. I took the inburgering exam 2 years ago and i passed it. My ex partner told me that she can't help me out, because she don't have a contract for her job. Last year my inburgering certificate expires and i took another exam and i passed it again, and now my ex partner refused to help me to be with them, for unknown reason. I dobt have any contact with her for about a month now. My question is, it is still possible for me to apply a resident permit to help my ex partner to take care of our daughter? Hope i can get an answer. Thanks very much
Best regards,

Janice Rappold

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

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

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

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

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

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 MartíNez

Important development on immigration rights served from parenthood.

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