In a case that clarifies and strengthens the concept of EU citizenship, the EU Court of Justice has ruled that a non-EU citizen, as the parent of a minor child who is a citizen of an EU country, may rely on a derived right of residence. The case, Chavez-Vilchez and Others, involved a Venezuelan woman whose EU citizen child was fathered by a Dutch citizen and who became the primary caregiver when the couple separated. Seven similar cases were consolidated, challenging Dutch authorities’ refusal to grant the mothers right of residence and access to social benefits.

The court reasoned that the mothers could rely on a derived right of residence if their children’s rights as EU citizens could be violated if forced to leave the EU.

If “the mothers were compelled to leave the territory of the EU, that could deprive their children of the genuine enjoyment of the substance of the rights conferred by virtue of their status” in violation of Article 20 of the Treaty on the Functioning of the European Union, the court ruled. The case builds on previous caselaw in which the court determined that Article 20 prohibits member states from taking national measures, including refusing a right of residence to family members of an EU citizen, that have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status.

The court clarified that the individual country’s courts, in this case in the Netherlands, should determine whether this would occur based on evidence of which parent is the primary caregiver, whether the child is in fact dependent upon the non-EU parent and taking into account the rights to family life and the best interests of the child. The non-EU parent bears the burden of proving that refusing him or her the right of residence would deprive the child of the genuine enjoyment of the child’s substance of rights as an EU citizen by forcing the child to leave the EU.

Notably, the court said that even if the EU citizen parent is willing and able to assume sole responsibility for the child’s daily care, this is a relevant factor, but is not alone sufficient grounds for concluding that the child is not so dependent on the non-EU parent such that the child would be forced to leave the EU if that parent is refused a right of residence. The domestic court should look at the best interests of the child and the individual circumstances including the child’s age, physical and emotional development and extent of emotional ties to the EU parent and the non-EU parent, and the risks of separation from the non-EU parent.

In the case of the Venezuelan national, where the family lived in Germany until 2011, the Dutch court should look at whether the mother can claim a derivative right to residence based on Article 21 of the TFEU and directive 2004/38 based on their rights to freely move and reside within the EU, and, if not, the court should conduct the analysis according to Article 20.

The case is: H.C. Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank and Others, Court of Justice of the European Union, C-133/15. Read the full text of the decision here.

BAL Analysis: The case was closely watched, as a number of countries including Belgium, Denmark, France, the U.K. and others made observations and the ruling was made by a Grand Chamber of the Court, implying a serious issue of systemic importance. The ruling could further complicate Brexit negotiations as the rights of EU citizens in the U.K. are a top priority for the EU negotiating position.

This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.

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