FURTHER VINDICATION FOR NON-EU NATIONALS RESIDING IN AN EU STATE AS PRIMARY CARERS OF AN EU NATIONAL CHILD

The recent case of H.C. Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank and Others C-133/15 was one in which the Court of Justice European Union (“CJEU”), held that a third-country national, i.e. someone who is not a national of the European Union (“EU”), may as the parent of a minor child rely on a derived right of residence in the EU. This case is analogous with the earlier case of Ruiz Zambrano (C 34/09) handed down in 2011, which held that the parents of a child who held EU membership (in this case a British child), derived a right of residence to live and work in the relevant membership in order to protect the right of the child to reside in the EU.

The case of Chavez-Vilchez concerned eight applicants, all mothers of children with Dutch nationality, who applied for financial support under the Dutch welfare system. All eight applications were refused on the basis that as they did not have the right to reside in the Netherlands, they did not have the right to social assistance under domestic law.

The particular facts of Mrs Chavez-Vilchez case were as follows: she was a Venezuelan national who entered into a relationship with a Dutch national, which lead to the birth of a child with Dutch nationality. The family resided in Germany until 2011, when the relationship broke down and Mrs Chavez-Vilchez left the family home with the child. Upon returning to the Netherlands, she applied for state welfare benefits in order to support the child; the father was no longer supporting the child. Mrs Chavez-Vilchez’s application was rejected by the authorities on the basis that she did not have the right to reside under domestic legislation.

Seven other third-country nationals jointly brought their case against the Dutch authorities, for refusing to grant them access to state welfare benefits. After an initial appeal was dismissed, it was the Higher Administrative Court of the Netherlands that decided to stay the proceedings and refer the following three questions to the CJEU for a preliminary ruling:

1. Must Article 20 TFEU be interpreted as precluding a Member State from depriving a third-country national who is responsible for the day-to-day and primary care of his/her minor child, who is a national of that Member State, of the right of residence in that Member State?
2. In answering that question, is it relevant that it is that parent on whom the child is entirely dependent, legally, financial and/or emotionally and, furthermore, that it cannot be excluded that the other parent, who is a national of the Member State, might in fact be able to care for the child?
3. In that case, should the parent/third-country national have to make a plausible case that the other parent is not able to assume responsibility for the care of the child, so that the child would be obliged to leave the territory of the European Union if the parent/third-country national is denied a right of residence?

Article 20 of the TFEU (“Treaty on the Functioning of the European Union”), concerns inter alia, the citizenship of EU nationals and their right to move and reside freely within the EU.

In essence, the Court’s preliminary ruling was twofold:

• That for the purpose of assessing whether a child, who is a citizen of a member state of the EU, is compelled to leave, regard must be had to whether in so refusing the relevant carer’s application for residency, the child would be deprived of the benefits of EU membership. The fact that there is another parent, or carer who is able, and indeed willing to look after the child is a factor to be weighed in the balance but is not fatal to such an application. An assessment must take into account the best interests of the child as well as the particular circumstances of the case.
• Article 20 of TFEU, must be interpreted as not precluding an EU member state from providing the right of residency in its territory to a third country national, whom is the parent of a minor child, with nationality of a member state. Such a right of residency is subject to the applicant providing evidence that they are the primary carer for the EU national child, and that to refuse such an application, and thus compel the child to leave the territory of the relevant member state in question, would deprive said child of the substantive rights they are afforded as EU nationals.

The Court held that it was for the member state concerned (namely the Dutch Authorities) to conduct the relevant investigations and scrutiny of the evidence in order to assess whether in light of the particular circumstances, such a refusal would indeed have such consequences.

Much like the case of Zambrano (which also relied on Article 20 of the TFEU), this is a further vindication of a third country national’s right to reside as a primary carer in a member state of the EU. In Zambrano, it was previously held that to require the child to leave would deprive the child of a genuine enjoyment of their EU membership rights.

As such, it is clear that third country nationals residing in an EU member state and who is a primary carer of a child who is an EU national and thus enjoys the benefits of such nationality, has a right to reside. The third country national should thus apply for a residence document along with evidence to support the proposition that to require them to leave would deprive the EU child of the benefits afforded to them by their EU membership.