Brussels, 11/10/2013 (Agence Europe) - The Court of Justice of the EU ruled on 10 October (ruling C-86/12) that a member state can refuse the right to remain to a third-country national who has sole responsibility for young children, citizens of the EU and living from birth with her in that member state but not having the nationality of that state or using their right to freedom of movement, if those children do not have sufficient resources to allow them not to be dependent on the welfare state of the country or have comprehensive sickness insurance (conditions stipulated by Directive 2004/38 on freedom of movement and right to remain of EU citizens)
The Court was responding to questions put by the Luxembourg administrative court which was hearing a case involving Ms Adzo Domenyo Alopka, a Togolese national, and the Luxembourg authorities, following their refusal to grant her right to remain in Luxembourg. Alopka's two children, of French nationality, were born in Luxembourg and have no contact with their French father who resides in France. Alopka has the offer of a permanent work contract in Luxembourg, which cannot be taken up solely because of her not having residence authorisation and a work permit. The Luxembourg court asked the Court whether, in these circumstances, Alopka can claim a derived right to remain, under the terms of citizenship of the EU (Article 20 of the TFEU).
The Court rules that EU law confers the right to remain in a host member state on an under-age national of another member state who fulfils the conditions set out in the directive (see above), this article allowing the parent who has effective responsibility for that national to stay with him/her in the host member state. In this particular case, the Luxembourg court must determine whether Alopka's children have of themselves or through her sufficient resources and a comprehensive medical insurance within the meaning of the directive. If not, Article 21 TFEU (citizenship of the EU) is not a bar to refusal of right to remain in Luxembourg for Alopka. The Luxembourg court must, nevertheless, determine whether a residence permit might exceptionally be granted to her, so that account can be taken of the beneficial effect EU citizenship enjoyed by the children who, if such were to be refused, would be forced to leave the EU. (FG/transl.fl)