An interesting judgment has been handed down by the Court of Justice of the European Union (“CJEU”), which rules in favour of a non-EU parent’s right to reside in an EU country if his or her child is an EU citizen of that EU country.

The judgment

This judgment (Chavez-Vilchez) clarifies the position in a previous decision made on Zambrano children. The principle from the Zambrano case is that Member States are precluded from refusing a non-EU parent (with a dependent EU child) a right of residence in the Member State of residence and nationality of that child.

This legal principle has been whittled down over the years to the extent that immigration authorities are now prepared to expel non-EU parents so long as there is an EU parent (who is a citizen of the Member State) who can look after the EU child in that Member State. Incredibly, the interpretation has been taken so far that it would still be the case even if the EU parent does not want to take care of the EU child.

As many immigration authorities (including the UK) have adopted such legal interpretations, the Chavez-Vilchez’s decision now realigns the interpretation of a non-EU parent’s right of residence in that EU country where the child is a citizen.

The case involves a Venezuelan mother who travelled to Europe on a tourist visa and had a relationship with a Dutch national. She ended up staying and subsequently gave birth to their Dutch child. The Venezuelan mother separated from the Dutch father and became solely responsible for the child’s care. She came into difficulty when she was refused social welfare benefits as it was decided that she did not have a right of residence in the Netherlands and would need to leave. This decision would ultimately mean the child would have to leave with the Venezuelan mother. As such, the question arose as to what is ‘the genuine enjoyment of the substance of EU children’s citizenship rights’.

What is ‘the genuine enjoyment of the substance of the rights of European citizens’?

In the Chavez-Vilchez case, the CJEU held that it was the Member States’ responsibility to assess whether the EU citizen child is genuinely dependent on the non-EU parent. The fact that the other EU parent is actually able and willing to assume the role of sole responsibility for the primary day-to-day care of the child is only a relevant factor. It is not a sufficient ground to conclude that the dependency relationship of the child and non-EU parent is not such as to compel the child to leave the EU if that parent was expelled.

Therefore, even if there is an EU parent who might be able to care for the child, the key is still and always the dependency relationship of the child with the non-EU parent. If such dependency exists, then the non-EU parent has a right of residence (and to social benefits) and the Member State must consider the right to respect for family life under Article 7 EU Charter of Fundamental Rights.

For non-EU parents who are living in the UK with children who are UK citizens (and also EU citizens), this judgment reaffirms the importance of respecting ‘the genuine enjoyment of the substance of rights of EU citizens’, which includes UK citizen children. This right cannot be easily displaced and the authorities are obliged to take the best interests of the child into account as the main factor in any decision which they make regarding the residence status of the child’s parents. If the child is dependent on the non-EU parent then the fact that there might be another EU citizen parent available to care for the child will not displace the child’s right to live with the parent on which it is dependent and, in turn, the non-EU parent would have a right of residence and a right to claim to social benefits, including child benefit.

Further information

Should you have any questions about the status of children born to European nationals, or any British citizenship or permanent residence query, please contact Jessica Jim or a member of our immigration team.