By Maria Haag
Can the Netherlands deny a third-country national (TCN), who is the primary carer of Dutch children, the right to reside? Two weeks ago, the Court of Justice of the European Union (CJEU) held in Chávez-Vílchez and Others that under EU law it cannot. In this important Grand Chamber decision, the CJEU has reaffirmed and expanded its landmark Ruiz Zambrano decision.
To see how this has happened, let’s first start by giving a quick recap of Ruiz Zambrano. In this notorious case, Belgium was precluded from denying a right of residence to a Colombian father of two Belgian minors. The Court established that under Article 20 TFEU, Member States cannot deprive Union citizens of ‘the genuine enjoyment of the substance of the rights’ conferred by their EU citizenship status (para. 42). This judgment had two crucial consequences. First, the Court expanded the scope of application of EU law to include situations otherwise known as ‘purely internal’, i.e. a situation concerning Belgian nationals in Belgium. This meant that Union citizens could invoke Article 20 TFEU against their Member State of nationality, even if they had never previously made use of their free movement rights. Secondly, Member States were precluded from denying a residence right to TCN carers of national minors. The Court held that if the parent were deported, these children would have no choice but to leave the territory of the EU as well. This would mean that the children, as EU citizens, would no longer be able to make use of their rights in the EU.
After this ground-breaking decision, the Court swiftly backtracked and curtailed Ruiz Zambrano in several subsequent decisions on this issue. It held that this ‘genuine enjoyment’ protection did not apply to adults being separated from their spouses (McCarthy), or to adults separated from their parents (Ymeraga and Others), nor to children separated from only one of their parents, whilst the other was able to remain with them (Dereci and Others). The hope that Ruiz Zambrano had created a European citizenship beyond free movement, one that was serious about protecting fundamental rights (especially family reunification rights), was quickly pronounced dead.
Since the summer of 2016, however, a number of decisions (NA, CS, Rendón Marín) have revived this case law and proven that the protection under Article 20 TFEU right is quite powerful. Chávez-Vílchez follows this trend.
The Chávez-Vílchez and Others decision concerns eight different applicants, all of whom share important commonalities. The applicants were TCN mothers residing in the Netherlands with their Dutch national children. None of them had a valid residence permit, however no deportation measures were taken against any of them. The children had received their nationality through their fathers. Thus, in all cases, the minor had a TCN mother and an EU citizen father. Seven out of the eight minor EU citizens had never made use of their EU free movement rights, i.e. had never left the Netherlands.
There are also a number of differences between the applicants. Five of the families received no financial support from the father. The other three fathers contributed financially to the children’s care, however the mothers were still the primary, day-to-day carers of the children. The relationships with the father varied slightly from case to case: from no contact with the father (see for example, the Chávez-Vílchez, García Pérez, and Uwituze families) to almost daily contact (Guerrero Chávez). Furthermore, the case of the Chávez-Vílchez family differs from the others, as the family had resided in Germany for a couple of years before returning to the Netherlands. It is thus the only case in which the daughter – the EU citizen – had previously made use of her free movement rights.
In all cases, the applications for social assistance and child benefits were denied on the basis that the mothers did not have a lawful residence status in the Netherlands and thus did not have the right to receive social benefits. The applicants’ challenges of the refusal to pay social assistance failed before the courts of first instance. On appeal, the Dutch Higher Administrative Court referred a preliminary ruling to the CJEU in order to ascertain whether the applicants could derive a right of residence under EU law. If that were the case, the Dutch court held, the applicants, as foreign nationals legally residing in the Netherlands, would have the same access to social assistance as Dutch nationals.
The following three questions were referred to the CJEU:
- Under Article 20 TFEU, can a TCN mother derive a residence right in the home Member State of an EU citizen minor, if the mother is the primary carer of that minor?
- What type of relationship between mother and child would compel the child to leave the EU if the mother was forced to leave? Does it matter that it cannot be excluded that the father, an EU citizen, might be able to take care of the child?
- Does the TCN have to make a plausible case that the other parent is unable or unwilling to care for the child?
The referring court also explained why it was asking the CJEU for these clarifications (paras 32-38). It stated that various Dutch administrative authorities (in charge of determining whether a TCN has a right of residence) were applying a very restrictive interpretation of the Ruiz Zambrano case law to cases such as the present one. The authorities held that the case law was only applicable where the EU citizen father was unable to care for the child – i.e., where he was in prison, in a psychiatric institution or hospital, or deceased. In all other situations, it was for the TCN mother to establish that the father was incapable of caring for the child. Here, the Dutch authorities deemed the following factors irrelevant: the fact that the TCN mother, and not the EU citizen father, was responsible for the primary day-to-day care of the child; the contact between child and father; the father’s contribution to the support and upbringing of the child; and whether the father was even willing to take care of the child. The fact that the father had no rights of custody was also considered immaterial, if no plausible case had been made that rights of custody could not be awarded to him.
The referring court wanted to clarify whether such a restrictive interpretation of the Ruiz Zambrano case law complied with EU law.
The Court first addressed the divergent case of Ms Chávez-Vílchez and her daughter, who had resided in Germany for a couple of years and then returned to the Netherlands. It tested whether Article 21 TFEU and Directive 2004/38 applied. Whilst the Directive only applies to the Union citizen’s stay in a host Member State, the Court confirmed its previous decision that when Union citizens return to their home state, the conditions for a derived residence right of a TCN family member should not be stricter than those provided for in the Directive (see O and B, para. 50). Technically, Ms Chávez-Vílchez could thus derive a residence right, unless the national court found that she did not fulfil the Directive’s requirements for the lawful entry into a Member State – relevant here is Article 5(1) and (4) of the Directive requiring the TCN family member to have valid travel documents upon entry. Article 20 TFEU would only apply if this was not the case. In establishing a derived residence right, the consideration of Article 21 TFEU thus takes precedence over Article 20 TFEU.
Turning to Article 20 TFEU, the Court reaffirmed its Ruiz Zambrano ruling. A TCN primary carer of a Union citizen minor can derive a right of residence based on Article 20 TFEU, if the denial of such a right would lead to both the carer and the minor being forced to leave EU territory. Here it is presumed that if the TCN mother is forced to leave the EU, the child has no choice but to follow her. The child, a Union citizen, would then be deprived of genuine enjoyment of the substance of his or her EU citizenship rights (para. 65).
The Court then tackled the second question – what compels the child to be forced to leave with their TCN carer? First, one has to assess who the primary carer is. In this respect, it is important to consider who has custody of the child and on whom the child is legally, financially, or emotionally dependent (see also O and S, para. 56). This assessment must take into account Article 7 of the Charter of EU Fundamental Rights – the right to respect for family life – and give special consideration to the best interests of the child (para. 70). The Court conceded that the fact that the EU citizen father is able and willing to take care of the child is a relevant element. This, however, is not sufficient to conclude that there is no relationship of dependency between the child and the TCN mother. Even with an EU citizen father present, the child can still be compelled to leave the EU if the TCN mother is denied a right to reside. Here the child’s best interests, age, physical and emotional development and the extent of his or her emotional ties to both parents have to be considered.
Lastly, the CJEU briefly responded to the third question referred by the Dutch court: whether the TCN applicant has to show that the EU parent is unable or unwilling to look after the child. The Court held that a Member State may require the TCN parent to carry the burden of proof in providing such evidence. However, the Court stated, quite vaguely, that this burden of proof cannot undermine the effectiveness of Article 20 TFEU. Thus, national authorities still have the obligation to undertake the necessary inquiries to accurately assess the child’s potential deprivation of the ‘genuine enjoyment’-right (see para. 78)
Two minor comments first before looking at the wider implications of this case. Firstly, this ruling is not only relevant for TCNs who are the biological mothers of Union citizens; the same obviously applies to fathers (see for example the Rendón Marín decision) or any other persons who are the primary carer of the child, such as, for example, the child’s grandparent (see here S and G).
Secondly, as already mentioned above, the Court confirms in Chávez-Vílchez that, if applicable, the right of residence under Article 21 TFEU first has to be exhausted, before Article 20 TFEU can be applied. The Court hereby confirms its prior decisions in Alokpa and Moudoulou and NA.
Next, looking at the more fundamental implications of this ruling, the Court both reaffirms the Ruiz Zambrano decision and expands it.
First and foremost, the child’s best interests are emphasised and taken seriously throughout the decision. This emphasis was already visible in the Rendón Marín and CS, both 2016 decisions, in which Member States were precluded from expelling criminal TCN parents of EU citizens without first applying a very stringent proportionality test. In Chávez-Vílchez, the Court seems to see through the very harsh practice of Dutch authorities. In those practices outlined above, only children of imprisoned, institutionalised or deceased fathers are presumed to have the required relationship of dependency with the mother. In all other cases, this relationship is very difficult to prove. The CJEU here makes it clear that one cannot assume that the mere existence of a Dutch father prevents the child from having to leave the EU, if his or her primary carer is forced to leave. Unlike the Dutch authorities, the CJEU gives the TCN mothers a real chance to prove the dependency relationship between them and their children.
After the Chávez-Vílchez decision, it is interesting to reconsider the older Dereci judgment. Mr Dereci, a Turkish national living with his Austrian wife and children, was denied the right to stay in Austria. As the children were not dependent on him for subsistence and could stay with their Austrian mother in Austria, the Court held that their father’s expulsion would not force them to follow him to Turkey. Both Dereci and Chávez-Vílchez concern minors with an EU citizen parent and a TCN parent. There is, however, an obvious difference between the two cases. In Dereci, the EU minors were living together with both their EU citizen mother and their TCN father and were supposedly dependent on both. In Chávez-Vílchez, it is clear that the children are only dependent on their TCN mother. Therefore, Ms Chavez-Vilchez’s daughter has no other choice but to leave with her mother. In Dereci, the CJEU held that the children could be supported solely by their mother, and thus their father’s departure would not force them to follow him. However, having lived together as a family, the children are presumably at least legally and emotionally dependent also on their father. Furthermore, it is arguably in the children’s best interests to grow up with both their mother and father present. Surprisingly, there is no mention of considering the child’s best interests in the Dereci decision. The Chávez-Vílchez judgment makes one wonder, whether Mr Dereci might actually be able to prove the necessary dependency relationship between him and his children. Further clarification from the Court is needed for situations where an EU national parent and a TCN parent are raising their children together.
Secondly, this is the first case that has come before the CJEU on the issue of Article 20 TFEU and the rights to social benefits. Whilst it has been clear since Ruiz Zambrano that a TCN parent can derive a right of residence in the home Member State, the issue of access to social benefits of such parents had been left unanswered. In Chávez-Vílchez, the Court does not directly refer to this issue either. However, it is evident from the facts and the way that the Dutch court has referred this issue to the CJEU, that this case is not about a direct threat of deportation. Instead, it is about the mere refusal to pay social assistance to a TCN national residing unlawfully in the Netherlands. It is thus the first case in the Ruiz Zambrano line that did not arise due to an expulsion decision, but rather because of a refusal to pay social benefits. Following the CJEU’s decision, the Netherlands will have to grant the carers of minors a right of residence and, according to national legislation, can no longer deny them the access to social benefits. Whilst this might not have necessarily been the Court’s original intent, this case implicitly addresses the potential threat of indirectly ‘squeezing out’ the TCN mother by denying her a lawful right of residence and thus access to social benefits. It will be interesting to see whether the CJEU will address this right to social benefits more explicitly in the future.
To sum up, Chávez-Vílchez confirms that the protection under Article 20 TFEU and the genuine enjoyment rule can be quite powerful. The decision highlights that the underlying aim of this protection is safeguarding the best interests of the EU child. Article 20 TFEU therefore does not just establish Union citizenship but also ensures the protection of the future rights of EU citizen children.