Right of Residence Under Article 20 TFEU of the Primary Carer of a Minor Union Citizen: Summary of an Expert Opinion on Issues Arising from the Pending Case of Chavez-Vilchez and Others (C-133/15)

Abstract

This is an English language summary of an extensive Dutch expert opinion concerning a pending ECJ case of wide relevance - a follow up to Ruiz Zambrano and Dereci which explores some of the more complex and realistic scenarios which may arise.

That expert opinion provides a legal analysis of the issues raised by the preliminary questions referred in the pending cases of Chavez-Vilchez and Others (C-133/15). It was written in support of the written observations by the lawyers of the mothers and children involved. Since the rules of the Court of Justice of the European Union (Court) do not allow the submission of amicus briefs it is circulated and made public in the hope of raising awareness of the cases and the relevant legal issues they contain. This summary contains all the essential arguments made in the full opinion.

The cases all involve a situation where a third country national mother is the primary and actual carer of a minor Union citizen. Moreover, each mother has (sole) parental authority and custody over the child. The fathers in these cases, from whom the minor Union citizens derive their Dutch nationality, are either not involved at all, or only to a very minor extent and have either no or only shared parental authority. Moreover, the fathers are unwilling and/ or unable to take over the care for the child. Nonetheless, the mother is faced with denial of any residence rights by the Dutch authorities and will therefore be under a legal obligation to leave the Netherlands and the European Union as a whole.

A simple Ruiz Zambrano type situation, one might think, in which the mother derives an EU law-based residence right from her child. However, the Dutch immigration authorities have taken the stance that since the fathers are not deceased or incarcerated they should – despite the fact that they are unwilling to do so – take over the care of the child and therefore the departure of the mothers from the territory of the European Union does not force the child to follow. Ruiz Zambrano, they therefore argue, is not applicable.

The opinion comes to the conclusion that the Dutch authorities are wrong: expulsion of a parent who is the primary carer of a minor child deprives that child of the genuine enjoyment of the substance of its citizenship rights. It must either leave the union with its mother, or remain behind while it's mother is expelled, in violation of its family rights: residence rights which can only be exercised at the price of family rights, it is argued, are not genuinely enjoyed in the meaning of the case law of the Court of Justice.

Keywords: migration, union citizenship, family rights, family life, Ruiz Zambrano, EU law