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The authorities must take account of the right to respect for family life and the best interests of the child when assessing the residency rights application of non-EU parents, rules Europe’s highest court / Photo: TCH

Non-EU parents could have residence rights if children are EU citizens – European Court

The European Court of Justice (ECJ) has ruled that non-EU citizens may, as the parent of a minor child who is an EU citizen, have the right to residence in the European Union.

Non-EU nationals could have the right to residence if their children are citizens of the EU, the European Court of Justice ruled on Wednesday (10 May) in Luxembourg.

The court delivered the verdict in the case of a Venezuelan woman who had a child with a Dutch citizen from whom she has since separated.

The woman said that following the couple’s separation in 2011, she became solely responsible for the welfare and upbringing of her child. But she was denied social welfare and child benefit payments by the Dutch state as she was not an EU resident.

However, the ECJ has now ruled that EU law does not allow a member state to take decisions which block the legal rights of a family member of an EU citizen – in this case, the woman’s child, who is a Dutch citizen via her father.

The court argued that any threat to the mother’s right to remain in the EU would deprive the child of the “genuine enjoyment” of her own rights under European law.

Furthermore, Europe’s highest court ruled that national courts should assess the relationship between the child and the non-EU parent, the criteria for which includes looking at the child’s age, and their “emotional ties with both parents” before reaching a decision on residency rights.

The court also stated that residence status could be conferred on the non-EU parent even if the parent with EU citizenship had sole custody of the child. “The fact that the other parent, an EU citizen, could assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the EU if a right of residence were refused to that third-country national,” the court ruled.

Sola Jolaoso

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