Court ruling strengthens residence rights of third-country nationals in the EU

Anja Seling, Immigration Consultant at the Expat Management Group, talks about the Chavez-Vilchez ruling, which has strengthened the rights of residence of third-country nationals in the EU.

On May 10, 2017, the European Court of Justice (ECJ) rendered a crucial judgment on the rights of residence in the European Union for third-country national parents who have children with a Dutch national and live in the EU.

The crux of the judgment is the expansion of legal residence rights for foreign nationals who are the parent of a minor EU national and the primary caretaker of said child. They may rely on EU law more easily following the ruling and receive a residence permit in the Netherlands, if the Dutch authorities consider that she or he can be considered as the primary caretaker, and actively participates in the care and upbringing of the child.

In addition, if it means that the child would need to leave the EU because his or her primary caretaker would need to leave the EU, an EU national would be deprived of his or her essential rights guaranteed under EU law.

Background of the ruling

A number of individuals who were originally from third-countries (mainly from Venezuela and Surinam) had filed appeals regarding decisions of Dutch national courts to restrict their access to social assistance from the Dutch government. The reasoning behind this was that because the third-country parents did not have a Dutch residence permit, they were not entitled to receive such assistance

For example, in the circumstances of Ms Chavez-Vilchez (who the eventual court case was named after), the father was not supporting or contributing to their child’s upbringing whatsoever. Her applications for social assistance were denied, however, due to her (lack of) residential status.

The Higher Administrative Court (Centrale Raad van Beroep) in the Netherlands asked the ECJ questions about whether the mothers of the children, who are non-EU nationals, have a right of residence based on EU law and whether they could be entitled to social benefits.

Outcome of the ruling

The ECJ ruled that a third-country national, who is a parent of a minor child who is an EU citizen, may rely on a derived right of residence in the EU. What this means, is that the non-EU parent can base their request of a residence permit on the EU nationality of their child. There are, naturally, certain requirements that need to be met, such as the dependency of the child on the non-EU parent.

The ECJ elaborated that, while the fact that the parent who does have an EU nationality could assume sole responsibility for the daily care of the child is relevant, this alone is not sufficient to refuse a residence permit.

Requirements

The test which must be applied is to determine how strong the legal, emotional and financial dependency is between the child and the third-country national. The main concern should be the best interest of the child. If it can be proven to the national authorities that the child is more dependent on the non-EU parent and that they can be considered the primary caretaker, the non-EU parent may have a strong case.

Impact of Chavez-Vilchez

Whereas before, the Dutch courts requested the non-EU parent to prove that the Dutch parent was not able to take care of the child, the ECJ ruling forces them to apply a less rigid test. Now, the argument that the Dutch parent could take over the daily care of the child is no longer valid as the sole reason to refuse a residence permit.

Other factors to be taken into account by the national authorities are the age of the child, the child’s physical and emotional development, the emotional attachment to the EU parent and the non-EU parent and the distress which separation may have on the child’s equilibrium.

Implementation in practice

In the aftermath of Chavez-Vilchez, a lot of requests have been made by foreign nationals, who are parents of Dutch children, to derive residence rights through their European children.

In practice, the IND has been quite lenient in granting residence permits on these grounds. Provided the third-country parent is able to prove that she or he is actually participating in the care and upbringing of the child (whether or not in cooperation with the other parent), there is a high chance that a residence permit will be granted.

In addition, the third-country parent also needs to provide proof that the child is in such a way dependent on him or her that the child has no other option than to leave the European Union with the third-country parent, should the parent not be granted a residence permit.

Are you a non-EU parent with a child of EU / Dutch nationality and seeking advice on how to obtain a valid residence permit in the Netherlands? Expat Management Group offers a tailor-made and individual service and assists clients with all the necessary steps of the immigration process. They can assist you with these types of cases. Potential clients can contact Anja Seling directly.

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Contact us at the nearest Expat Management Group office or submit a contactform.

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