Third-Country Nationals May Rely on a Derived Right of Residence from a Minor Child who is an EU Citizen (May 10, 2017) [1]
On May 10, 2017, the Court of Justice of the European Union ruled [3] in Chavez-Vilchez v. Raad van bestuur van de Sociale verzekeringsbank that a state may potentially be required to provide a third-country national with a right of residence if that individual has a minor child who is an EU citizen. According to the press release [4], the Court noted that Article 20 of the Treaty on the Functioning on the European Union “precludes national measures, including decisions refusing a right of residence to the family members of an EU citizen, which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status. In this case, if the mothers were compelled to leave the territory of the EU, that could deprive their children of the genuine enjoyment of the substance of those rights by compelling those children to leave the territory of the EU.” The Court also stated that having another parent who is an EU citizen and able to assume sole responsibility for the child in the EU may be a factor in the decision, but that is not sufficient to determine that a relationship between the parent who is not an EU citizen and the child would not require the child to leave the EU if that parent was denied a right of residency. The Court held that states must consider in their assessment a number of factors relating to the best interest of the child, “including the age of the child, the child’s physical and emotional development, the extent of his or her emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium.”