On 10 May the CJEU issued its judgment in the case of Chavez-Vilchez and others about the interpretation of Article 20 TfEU. The case concerned preliminary questions of the Dutch Centrale Raad van Beroep about the residence rights of a third country national who has the actual and day- to-day care for her minor child who is a citizen of the Union. In the cases concerned the Union citizen father was either not involved, or only to a very minor extent in the care for the minor and had either no or shared parental authority.

The Migration Law Clinic published an expert opinion on this case in  July 2015. This expert opinion concluded that the third country national mothers indeed have a derived right of residence from Article 20 TFEU. The decision to refuse a right of residence and sufficient means would in the cases at hand deprive the minor children who are European Union citizen of their genuine and effective enjoyment of the substance of the rights attaching to the status of the European Union citizen for several reasons. First, the minor Union citizens in these cases at hand were dependent of their third country national mothers to such an extent that they would accompany their third country national mother and leave the territory of the European Union if she would be denied a right of residence. Secondly it was argued that forced separation of the minor Union citizen and its third country national mother with the sole purpose of ensuring that the child remains in the European Union and to prevent the third country national parent from obtaining a derived right of residence, would amount to a clear violation of the child’s right to family life.

The CJEU’s ruling is largely in line with the expert opinion. It concluded:

Article 20 TFEU must be interpreted as meaning that for the purposes of assessing whether a child who is a citizen of the European Union would be compelled to leave the territory of the European Union as a whole and thereby deprived of the genuine enjoyment of the substance of the rights conferred on him by that article if the child’s third-country national parent were refused a right of residence in the Member State concerned, the fact that the other parent, who is a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would indeed be so compelled were there to be such a refusal of a right of residence. Such an assessment must take into account, in the best interests of the child concerned, all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for the child’s equilibrium.

Article 20 TFEU must be interpreted as not precluding a Member State fromproviding that the right of residence in its territory of a third-country national, who is a parent of a minor child that is a national of that Member State and who is responsible for the primary day-to-day care of that child, is subject to the requirement that the third-country national must provide evidence to prove that a refusal of a right of residence to the third-country national parent would deprive the child of the genuine enjoyment of the substance of the rights pertaining to the child’s status as a Union citizen, by obliging the child to leave the territory of the European Union, as a whole. It is however for the competent authorities of the Member State concerned to undertake, on the basis of the evidence provided by the third-country national, the necessary enquiries in order to be able to assess, in the light of all the specific circumstances, whether a refusal would have such consequences.