A national of a country that is not a member state of the European Union may, as the parent of a minor who is an EU citizen, relies on a derived right of residence in the EU, the Court of Justice of the EU ruled on Wednesday 10 May (case C-133/15).
In the framework of a preliminary ruling, the Dutch Court of Appeal for Public Service and Social Security Matters asked the Court whether a residence permit together with social assistance and child benefit could be granted to Ms Chavez-Vilchez, a Venezuelan national who had a child with a Dutch national in 2009. The parents lived together in Germany until Chavez-Vilchez and her child were compelled to leave the family home. She has since then been responsible for the care of her child with no assistance from the father.
According to the Court, the situation of Chavez-Vilchez and her child should first of all be assessed in the light of article 21 of the TFEU and of the directive (2004/38) facilitating the exercise of the freedom of movement and residence of European citizens within the territory of the member states. Although the Dutch court may not, on this basis, judge whether the Venezuelan national may rely on a derived right of residence in the EU, it must assess the situation in light of the article on citizenship.
The case-law of the Court, based on its interpretation of article 20, precludes national measures and decisions that would have the effect of depriving EU citizens of the enjoyment of their rights. In this case, compelling Chavez-Vilchez to leave the EU risks depriving her child of the right to reside in the EU, as the child would also be forced to leave the EU.
According to the Court, the Dutch judges must therefore: - determine which parent out of the Venezuelan national and the Dutch father is effectively responsible for the care of the child and; - whether there is a relationship of dependency between the child and the mother.
The Court also found that whether the EU parent is willing and able to assume sole responsibility for the day-to-day care of the child is relevant, but not sufficient grounds to deny the other third-country national parent residency.
In this framework, the authorities must take account of the right to respect for family life and the best interests of the child. Relevant factors in this include the age of the child, the child’s physical and emotional development, emotional ties to both parents and the risks that separation from the non-EU parent might entail.
The Court also defined the burden of proof, which lies with the third-country national in particular. However, the national authorities must ensure that the application of national legislation on the burden of proof does not undermine the effectiveness of article 20 of the TFEU. (Original version in French by Mathieu Bion)