Assessing the Temporariness of the Chavez-Vilchez Right of Residence

The District Court of Amsterdam has referred preliminary questions to the Court of Justice (regarding the right to residence of third-country national parents of Dutch children on the basis of Article 20 on the Treaty on the functioning of the European Union (also referred to in the Netherlands as the Chavez-Vilchez right of residence). The questions are formulated as follows:

  1. Is it within the competence of the Member States to determine whether the right of residence on the basis of Article 20 TFEU is in itself of a temporary or a non-temporary nature, or should it be interpreted in conformity with Union law?
  2. If interpretation must be in conformity with Union law, does a distinction [then] exist, when applying Directive 2003/109/EC, between the various dependents’ residence rights to which third-country nationals are entitled on the basis of Union law, including the dependent’s right of residence granted to a family member of a Union citizen on the basis of the Residence Directive and the right of residence on the basis of Article 20 TFEU?
  3. Is the right of residence on the basis of Article 20 TFEU, which by its nature depends on the existence [of] a relationship of dependency between the third-country national and the Union citizen and is therefore finite, of a temporary nature?
  4. If the right of residence on the basis of Article 20 TFEU is of a temporary nature, must Article 3(2)(e) of the Directive [then] be interpreted as precluding national legislation which only excludes residence permits issued under national law from acquiring long-term residence status within the meaning of the Directive?

The main focus of this expert opinion is the question whether the right of residence based on Article 20 TFEU is of a temporary nature, purely because the EU citizen child will at some point become an adult and the relationship of dependency is presumed to end at this point. More specifically it examines whether this right of residence is ‘temporary’ in the light of Article 3(2)(e) of the Long Term Residence Directive (Directive 2003/109/EC, LTRD).

The expert opinion first addresses the first preliminary question of whether or not it should be within the competence of the EU to define what constitutes ‘temporary grounds’ under the LTRD. It is contended that this question should be answered in the affirmative

Second, the expert opinion assesses whether the Chavez-Vilchez right of residence should be considered as temporary or non-temporary from the outset, at the moment this right is first granted to the TCN parent. In this context, it looks at the purpose of the LTRD. Moreover, it compares the Chavez-Vilchez right of residence with rights of residence, which are clearly considered of a temporary nature under the LTRD (au pairs, seasonal workers and service providers). The expert opinion also looks at the nature of other rights of residence, which are dependent on family ties (the right of residence of family members of EU citizens under the CD and the right to family reunification under the FRD). It concludes that that the Chavez-Vilchez residence right cannot be considered temporary at the moment they are granted.

Finally, the expert opinion argues that de facto long-term residence, is decisive for the legal qualification a right of residence as non-temporary. It is demonstrated that it is an important element of EU law that de facto long-term residence cannot indefinitely be qualified as temporary. De facto long-term residence generally also leads to more protection. It is argued that the duration of the residence and the integration of the TCN parent should make it possible to obtain a permanent residence permit under EU law. This is based on the rootedness of the individual and the objective of EU Law to genuinely integrate (TCN family members of) EU citizens and TCN sponsors in the society of the hosting Member State.

The case is currently pending before the Court of Justice. The expert opinion will be published when the Court of Justice has issued its judgment.