Minor EU children have a unique status in the CJEU’s jurisprudence and as these Dutch cases show, EU citizen children dependent on their non-EU parents are capable of repaying their debts to their foreign primary carer rather early in life. Indeed, the symbiotic nature of the relationship between a non-EU parent and the EU citizen child is reflected in the court’s finding that the parent may rely on a derived right of residence in the EU because of the child. These proceedings concerned eight third-country national mothers who each have one or more minor Netherlands national children whose fathers are holders of Netherlands nationality. Chavez-Vilchez is a Venezuelan national and the other mothers hold Cameroonian, Nicaraguan, Rwandan, Surinamese and Venezuelan nationality. One mother’s nationality is unclear but she entered from the former Yugoslavia. All of them live in difficult circumstances in the Netherlands and in each instance applications for social assistance and child benefit were rejected for the reason that without a right of residence, the mothers did not have any right to receive such assistance and benefits under national legislation. The refusal of social assistance and child benefit were premised on a restrictive interpretation of the judgments in Ruiz Zambrano (C-34/09, EU:C:2011:124) and Dereci and Others (C-256/11, EU:C:2011:734).
The Netherlands contended that the mere fact that a non-EU parent provides daily care to the EU citizen child and that the child is legally, financially or emotionally dependent on the non-EU parent does not lead to the automatic conclusion that the EU citizen child would be compelled to leave EU territory if a right of residence were refused to her parent. The mothers attempted to obtain social assistance and child benefit without having valid residence permits. All of them were not permitted to work. Some of them resided in the Netherlands lawfully. Others remained illegally but were not removed. The children’s fathers acknowledge them but they are in the care of their mothers. The facts of the cases differ as to the degree of the fathers’ contact with the children, their financial contributions towards their maintenance and custody rights. One father contributes to maintenance costs for his child. Five others do not contribute. In two cases the parents share custody but in the six other cases only the mother provided primary day-to-day care to the child and in four cases the mother and child lived together in an emergency refuge.
Central to these cases was the question whether in the circumstances the children would as a matter of fact be required to leave EU territory in the event the right of residence was refused to their mothers. Chavez-Vilchez’s EU citizen daughter had exercised her right to free movement. She had resided in Germany prior to her return to the Netherlands after which an application for child benefit was submitted to the Netherlands authorities. None of the other mothers’ EU citizen children had ever exercised their right of free movement before or during the period relevant to the applications for social assistance or child benefit. (Chavez-Vilchez was ultimately issued a residence permit on the basis of article 8 of the ECHR and the Surinamese mother of two children Ms Wip was also granted residence rights.)
The Centrale Raad van Beroep (Higher Administrative Court, Netherlands) asked the CJEU whether the mothers in question derive a right of residence under article 20 TFEU in the circumstances specific to each individual case. Its own view was that the eight mothers’ claims to social assistance and child benefit under Netherlands law did not fail because such entitlements did not rest on the possession of a valid residence permit or a equivalent document. The rationale underpinning the referring court’s analysis was a consequence of the decisions in Zambrano and Dereci pursuant to which these mothers enjoyed a right of residence in the Netherlands which they derived from their EU citizen children’s right of residence so long as the children’s circumstances fell within the boundaries delineated by those judgment
Numerous administrative bodies in the Netherlands interpreted the principles in Zambrano and Dereci restrictively to mean that they only apply in instances where, using objective criteria, the father is incapable of caring for the child because of imprisonment, institutionalisation, hospitalisation or death. Otherwise, the third-country national parent (mother) needs to show a plausible case that the father is incapable of caring for the child, even with the possible assistance of third parties. Notably, these misconceived rules arose owing to guidance contained in the Vreemdelingencirculaire 2000 (the Circular of 2000 on Foreign Nationals).
The restrictive approach of the CJEU’s jurisprudence by the Dutch authorities was embedded in finding irrelevant (i) the fact that it was the third-country national mother, and not the EU citizen father, who was responsible for the primary day-to-day care of the child (ii) the nature of contact between the child and his or her father (iii) the extent to which the father contributed to the child’s support and upbringing and (iv) whether the father was even willing to take care of the child. The absence of the father’s rights of custody over the child was also thought to be irrelevant where no plausible case had been made that rights of custody could not be given to him. The referring court asked about the importance to be given to the fact that the EU citizen father resided in the Netherlands or in the EU.
The Court of Justice
It was held that a non-EU parent of a minor EU citizen child may rely on a derived right of residence. The other EU parent’s ability to assume sole responsibility for the child’s care is a relevant consideration but cannot on its own justify refusing a residence permit to the non-EU parent. The extent of the child’s dependence on the non-EU parent must not be such as to compel the child to leave the EU upon the latter’s exit from EU territory.
The circumstances surrounding Chavez-Vilchez and her EU citizen daughter fell to be addressed under article 21 TFEU and Directive 2004/38/EC (the Citizens’ Directive). Whether the conditions prescribed by Directive 2004/38 were satisfied and Chavez-Vilchez’s ability to rely on a derived right of residence remained matters for the Netherlands court to determine. Alternatively, the circumstances relating to the other children who have always resided with their mothers in the Netherlands required examination from the perspective of article of the 20 TFEU.
The fact that the child is not entirely dependent, legally, financially or emotionally on the third-country national was a significant feature of these proceedings and the CJEU reiterated its longstanding view that article 20 TFEU precludes national measures, including decisions refusing a right of residence to the family members of an EU citizen, which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as Union citizens.
It was equally clear that the Treaty provisions on Union citizenship do not confer any autonomous right on third-country nationals and their rights are not autonomous rights but are rights derived from those enjoyed by the EU citizen. As recently shown by Rendón Marín (C-165/14, EU:C:2016:675) and CS (Morocco), (C-304/14, EU:C:2016:674, see here), the purpose and justification of those derived rights are based on the fact that subduing them would amount to interfering with an EU citizen’s freedom of movement.
The court addressed the “very specific situations” criteria under which a right of residence must nevertheless be granted to a third-country national family member of an EU citizen even though the secondary law on the right of residence of third-country nationals does not apply, the circumstances are governed by national legislation falling within the member states’ competence and the EU citizen in question has not utilised her right to free movement. Such situations share the common feature that they have an intrinsic connection with an EU citizen’s freedom of movement and residence which precludes the right of entry and residence from being refused to her non-EU family members in her home member state so as to avoid interference with that freedom.
In examining the situation under article 20 TFEU, the CJEU reasserted its view that the provision precludes any national measures amounting to depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status. This was likely to occur in the event that the mothers in these cases were compelled to leave EU territory. The risk assessment in that context needs to appreciate which parent takes primary care of the child and whether a relationship of dependency between her and the non-EU parent actually exists. The court held that:
70. … As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in article 7 of the Charter of Fundamental Rights of the European Union, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in article 24(2) of that charter.
The ability and willingness of the EU citizen parent to assume sole responsibility for the primary care of the EU citizen child is a relevant factor in the assessment but is not on its own sufficient reason to conclude that child is not sufficiently dependent on the non-EU parent to forcibly cause her to leave EU territory in the event her non-EU parent was refused a residence permit. Any conclusions must account for the child’s best interests and examine all the specific circumstances, including the child’s age, physical and emotional development, the extent of her emotional ties both to the EU citizen parent and to the non-EU parent, and the risks which separation from the latter might involve for the child’s equilibrium. This analysis goes beyond factors such as best interests, age, circumstances and degree of dependency utilised in Rendón Marín and CS (Morocco).
As seen in Alarape and Tijani (C-529/11, EU:C:2013:290) and Reyes (C-423/12, EU:C:2014:16), the general rule of EU law is that a party who seeks to rely on certain rights must establish that those rights are applicable to her situation. Thus, the Netherlands argued that the burden of proof as to the existence of a right of residence under article 20 rested on the applicants in the main proceedings. They needed to show that objective impediments inhibit the EU citizen parent from actually caring for the EU citizen child and rendering the child totally dependent on the non-EU parent to such as degree that refusing her a residence permit would cause the child to leave EU territory.
Addressing the issue of the burden of proof, the CJEU restated the European Commission’s view that the non-EU parent needs to provide evidence by virtue of which it can be assessed whether a decision to refuse her a right of residence would deprive the child of the genuine enjoyment of the substance of the rights of EU citizenship by obliging the child to leave EU territory.
On the other hand, national authorities need to ensure that the application of national legislation involving the burden of proof does not compromise the effectiveness of article 20 TFEU. Inquiries must be made by the national authorities so as to determine the whereabouts of the EU citizen parent. Similarly, the authorities must examine whether a relationship of dependency between the child and the non-EU parent exists to corroborate whether a decision to refuse a right of residence to the parent would deprive the child of the genuine enjoyment EU citizenship rights by triggering constructive expulsion.
Since these mothers were unable to work or access welfare, the CJEU’s decision is a significant victory for non-EU parents with EU children who must have been forced into a life of poverty. The court’s finding that non-EU parents have a right of residence despite the possibility of the other parent providing childcare has been described as giving “more residence rights to non-EU parents of EU children in their home state than some member states had wanted.”
Statistics from 2012 show that single-parent fathers headed 400,000 families, representing 13.5% of all single-parent households in the UK. Mothers are naturally inclined to be children’s Zambrano carers. Consequently, it has been argued by Professor Peers that the idea of a “primary carer” creates problems. Because of the “division of labour” prevalent in raising children, the court’s rulings also present problems in terms of gender equality. Peers explains that in addition to disrupting “the child’s right to maintain a relationship with his father”, randomly expelling fathers also increases the burden of childcare on EU citizen mothers. In his view:
… the presence of the parent who looks after a child day-to-day is essential; but children love the parent who kicks the ball as well as the parent who cooks the meal.
To minimise human suffering and damage to families, despite observing the associated legal technicalities, Peers advocates the protection of Zambrano carers in Brexit talks – failing which he calls upon the UK government to unilaterally guarantee their rights.