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Zambrano and Derivative Rights of Residence – ECJ Grand Chamber in Chavez-Vilchez (Case C-133/15)

29th Jun, 2017 / Legal & Law Firm, News

Chavez-Vilchez (Case C-133/15) concerned eight disputes in the Netherlands that came before the Grand Chamber. All involved third-country national (‘TCN’) mothers to one or more Dutch national children. They had all made applications for social assistance and child benefits, which were unsuccessful because they did not have the right to reside in the Netherlands under domestic legislation. All but one child was born and raised in Netherlands and had never exercised the right of free movement.

The TCN mothers and their Dutch children had varying degrees of contact with the EEA national father. For example, one father was completely absent, one had the child stay with him three weekends a month and some holidays, and another father had almost daily contact with the child (see paragraphs 21 – 28).

The Issues

Three questions were referred to the Grand Chamber.

The first and second were whether, following Ruiz Zambrano (C‑34/09) and Dereci (C‑256/11), the TCN mothers had acquired a derivative right of residence in the Netherlands, notwithstanding the fact that the EEA national father could potentially take over the day-to-day care of the child. The Grand Chamber had to consider whether the fact that the child was not entirely dependent, legally, financially, or emotionally, on the TCN mother was a relevant factor in determining whether the Dutch children would be obliged, in practice, to leave the EU territory with their TCN mothers if rights of residence were refused to them.

The third question concerned who had the burden of proof in cases of this nature.

The Judgment

The first and second questions were considered together. The Grand Chamber first confirmed that Article 20 TFEU precluded decisions which have the effect of depriving EEA nationals of the genuine enjoyment of the substance of their rights as EEA nationals. It reiterated that any rights conferred on TCNs were not free-standing rights but they were, instead, ‘derived’ from those enjoyed by an EEA national exercising the right to free movement. However, there were very specific situations where, notwithstanding the fact that the EEA national had not exercised his/her right of free movement, a right of residence should be granted to a TCN. These were circumstances where, as a consequence of a refusal to grant a right of residence to a TCN, the EEA national would be obliged, in reality, to leave the EU territory and lose the genuine enjoyment of the substance of their rights as an EEA national. It was on this basis that TCN mothers of EEA national children were entitled to the right to reside in a Member State (see paragraphs 59 – 65).

In assessing the risk that a particular EEA national child may be compelled to leave the EU territory, the Grand Chamber emphasised that it was important to determine which parent was the primary carer of the child and whether there was in fact a relationship of dependency between the child and the TCN parent (see paragraph 68)… READ THE FULL ARTICLE

Contributor: Immigration Barrister

Website: www.immigrationbarrister.co.uk

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