On 15 September 2020 the Rechtbank Den Haag, Zittingsplaats Utrecht (Netherlands) lodged a request for a preliminary ruling to the European Court of Justice (ECJ) asking whether Article 20 TFEU is to be interpreted as precluding the refusal of an application for a residence permit from a third-country national where that third-country national has a dependent minor child who is a national of a Member State of the Union but has never resided in the Union since such a refusal would have the effect of preventing the child from exercising his rights of residence as a citizen of the Union.
In the main proceedings, the applicant, who has Thai nationality and was married to a Dutch national, gave birth to a child in Thailand. The child has Dutch nationality but was raised in Thailand by the applicant’s mother and has never been to the Netherlands. After the birth, the applicant returned to the Netherlands, but after her divorce, her right of residence there was withdrawn and she was deported to Bangkok since the application for a residence permit was refused, what drives the applicant to bring an action before the Rechtbank Den Haag (District Court, The Hague).
She alleged that she has a right to reside in the Netherlands because her child has Dutch nationality and she can derive a right of residence from his Union citizenship.
The defendant part understood that it was not clear that the child was dependent on his mother since the child has been resident in Thailand since birth living with his grandmother, so consequently, it is hard to demonstrate that it is in the interests of the child to allow the applicant to reside in the Netherlands. Furthermore, the defendant part alleged that there is no record and recognition of the Thai Judgment that granted sole parental responsibility to the applicant.
We can see that in this case, the parental responsibility of the child and the dependency relationship have an important role in the decision. For this reason, the referred Court also asked the ECJ if these specific circumstances create a decisive factor to determine the rights conferred by the citizenship of the Union.
Previous ECJ Judgments in similar cases
In C-133/15, Chavez-Vilchez and Others, one of the most detailed Judgments in this topic, the ECJ 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, if their children’s rights as EU citizens could be violated if forced to leave the EU. However, the European Court also clarified that is the competence of the Member State concerned to undertake, based on the evidence provided by the third-country national, the necessary enquiries to be able to assess, in the light of all the specific circumstances, whether a refusal would have such consequences.
The ECJ in C-34/09, Ruiz Zambrano v ONEm, ruled that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third-country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third-country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.
The ECJ in C-356/11 and C-357/11, O. and Others, specified one more time that the refusal of a resident permit to third-country national should not entail, for the Union citizen concerned, the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union.
Following similar rulings of ECJ, third-country national parents of EU-citizen minor children can have a derived right of residence in the EU. Thus, parents can obtain residence permits based on their children’s EU citizenship, but only if they meet certain conditions.
It is indispensable to prove the relationship of dependency between the child and the third country parent. Moreover, in the case of separated or divorced parents, it is important to prove that the parent of that third country is the one who takes care of the child and that a failure to grant the residence permit would result in no other option than the child’s leaving the EU, due to the child’s dependence on the parent.
In this present case, it is difficult to prove that the child will be affected by leaving the EU since even if he is a national of The Netherlands, he has never resided in the Union. However, taking into account the principle of the best interests of the child, a principle that in recent years have been explicitly recognised in several opinions of Advocates General and judgments of the Court of Justice, should be considered the possibility that shortly the child may move to live with his mother in that Member State, and therefore, if the mother is denied a residence permit, that possibility will be diminished.
The ECJ is facing two conflicting realities regarding how far it is willing to go in terms of extending the application of article 20 TFEU and how to apply the principle of the best interests of the child as a priority.
The hearing of this case, from the Court of Justice, was programmed for this week, but there is no delivery yet, so what do you think the EC J’s decision will be?
Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Utrecht (Netherlands), Case C-459/20, X v Staatssecretaris van Justitie en Veiligheid OJ C 443, 21.12.2020, p. 10–11
 Judgment of 10 May 2017, C-133/15, Chavez-Vilchez and Others, EU: C:2017:354
 Judgment of 8 March 2011, C-34/09, Ruiz Zambrano, EU: C:2011:124
 Judgment of 6 December 2012, C-356/11 and C-357/11, O. and Others, EU: C:2012:776
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