Reviewing the application of Chavez-Vilchez in the Netherlands

Third country national parents have a right to residence in the EU, if their expulsion would force their EU citizen minor child to leave the EU. In the judgment in Chavez-Vilchez, the Court of Justice EU held that the relation of dependency between a third country national parent and the EU citizen child has to be taken into account in the assessment whether the child would be forced to leave the EU, if the third country national parent would be expelled.

This expert opinion addresses the question whether the current Dutch policy and its application in practice relating to TCN parents of an EU citizen child is in conformity with the jurisprudence of the CJEU, in particular the Chavez-Vilchez judgment. It contains an analysis of Dutch policy, case law and a limited number of IND decisions, the CJEU’s case law and practice in other (former) Member States, in particular Spain and the United Kingdom.

The expert opinion concludes that several aspects of Dutch policy and case law violate Article 20 TFEU. The expert opinion particularly focuses on three aspects: primary care, the best interests of the child and the burden of proof. It argues that the Dutch IND and courts focus their analysis on a narrow and unlawful interpretation of the concept of ‘dependency’. Moreover, practice in the Netherlands shows a significant disregard for the best interests of the child, that are not considered in a thorough and systematic manner. Finally, IND practice and national case law demonstrate a disproportionate burden of proof on the TCN parent, which undermines the effectiveness of Article 20 TFEU.