When is a child forced to leave the EU?
In Ruiz Zambrano the Court of Justice of the EU decided that a minor EU child may not be forced to leave the territory of the EU. Four years later it is still not clear what implications this ruling has.
An EU citizen may not be forced to leave the territory of the EU. But when is this the case exactly? The Court of Justice was recently asked to answer this question by the Dutch Administrative High Court.
The basic principle that a (minor) EU citizen may not be forced to leave the territory of the EU was developed by the Court of Justice of the EU in the Ruiz Zambrano ruling (ECLI:EU:C:2011:124) in 2011. Four years later, domestic administrations and judiciaries are still struggling to grasp the implications of this basic principle. The central question being: in which circumstances is a minor EU citizen forced to leave the territory of the EU? Let’s first go back to the beginning. The Ruiz Zambrano case is about two Belgian children whose parents were refused lawful residence in Belgium. The CJEU held that the refusal of residence to the parents could not result in forcing (minor) EU citizens to leave the territory of the EU. The Court concluded that children would be forced to leave the territory of the EU in the event their parents were denied the right of residence in Belgium. Therefore, Belgium was under the obligation to allow the Ruiz Zambrano parents residence in Belgium in order to prevent the children being forced to leave the territory of the EU. The Ruiz Zambrano case concerned two parents without lawful residence. But what if one of the parents does have lawful residence in the Member State concerned? Would the child then be forced to leave the territory of the EU if the third country national parent was denied lawful residence? And what if the EU national parent, for one reason or another, was unable or unwilling to take care of the child?
The approach of the Council of State
The Dutch Council of State consistently holds that when a child has one parent who is a Dutch national, that child can be expected to stay with that parent in order to prevent the situation of the child being forced to leave the territory of the EU (see for instance: ECLI:NL:RVS:2014:2135). The standard line is that if there is a Dutch national parent, he or she can be expected to take care of the child. It is for the third country national parent to substantiate that the Dutch national parent is not able to take care of the child. The fact that the Dutch national parent may be unwilling to take care of the child is deemed to be of little relevance. According to the Council of State, the situation is different if the Dutch national parent is not able to take care of his or her child, for example because the parent concerned is in prison (ECLI:NL:RVS:2012:BX1345).
This strict interpretation of when a child is forced to leave the territory of the EU may very well result in situations in which a Dutch child by law is not required to leave the Netherlands, but in practice is forced to follow his mother because his father does not want to take care of him or because his mother does not want to leave him in the care of the father. The Dutch Council of State has never asked the CJEU for a preliminary ruling on this issue, even though it has already dealt with a number of such cases.
Recently, in a series of eight cases, the Administrative High Court asked the CJEU how to deal with cases in which one parent is a third country national while the other parent holds Dutch citizenship (ECLI:NL:CRvB:2015:665). It is interesting to see that the Council of State, which is the highest court in immigration matters, does not see the necessity to refer questions to the CJEU, but that the Administrative High Court does. Finally, four years after Ruiz Zambrano, the CJEU will have the opportunity to clarify how that ruling should be applied in cases in which one of the parents is an EU citizen.