CJEU: Chavez-Vilchez right of residence is not temporary

On 7 September 2022, the Court of Justice ruled that the right of a third-country national parent with their Union citizen-child under Article 20 TfEU (henceforth: the Chavez-Vilchez right of residence) cannot be considered ‘temporary’ in the meaning of Article 3 of the Long Term Residence Directive. The Migration Law Clinic issued an expert opinion in April 2021 arguing for this interpretation of this provision. The expert opinion was submitted to the CJEU in the context of the preliminary questions of the District Court of Amsterdam, which led to the ruling of 7 September.

The CJEU holds that the ordinary meaning of the words ‘solely on temporary grounds’ is that the residence was intended to be for a short period from the start. Here, the CJEU refers to the examples of temporary residence mentioned in Article 3 of the Directive: residence as au pair, seasonal worker, worker posted by a service provider or cross-border provider of services. The objective characteristic of these types of residence is that they are strictly limited in time and are indented to be residence for a short period. Therefore they make it impossible that the third-country national will settle on the territory of the Member State. The CJEU rules that the Chavez-Vilchez right of residence lacks that objective characteristic. The CJEU stresses that the relationship of dependency between parent and child is crucial where it concerns the Chavez-Vilchez right of residence. Even though this relation of dependency generally disappears over time, it is not short-lived. Therefore, long-term residency in the Union is not excluded. Moreover, the CJEU refers to the main purpose of the Long Term Residence Directive: the integration of third-country nationals in the Union. In this context, it notes that the Chavez-Vilchez right of residence usually lasts a considerable period of time and grants third-country nationals the right to work, which reinforces their ties with the Member State. Finally, it considers that third-country nationals with a Chavez-Vilchez right of residence must fulfill the requirements for long-term residency, such as the income requirements and (if the Member State has implemented this) integration requirements.

The ruling has important consequences for third-country national parents of Dutch children, who have until now been excluded from long-term residency by the Dutch immigration service.