Case C‑133/15
H.C. Chavez-Vilchez and Others
v
Raad van bestuur van de Sociale verzekeringsbank and Others
(Request for a preliminary ruling from the Centrale Raad van Beroep)
(Reference for a preliminary ruling — Union citizenship — Article 20 TFEU — Access to social assistance and child benefit conditional on right of residence in a Member State — Third-country national responsible for the primary day-to-day care of her minor child, a national of that Member State — Obligation on the third-country national to establish that the other parent, a national of that Member State, is not capable of caring for the child — Refusal of residence possibly obliging the child to leave the territory of the Member State, or the territory of the European Union)
Summary — Judgment of the Court (Grand Chamber), 10 May 2017
1. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Beneficiaries — Third-country national family members of a Union citizen — Condition — Union citizen having exercised freedom of movement
(European Parliament and Council Directive 2004/38, Art. 3(1))
2. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Union citizen returning to the Member State of his nationality after residing in another Member State solely by virtue of his being a Union citizen — Derived right of residence of his third-country national family members — Conditions –Actual residence of the Union citizen in the host Member State under Articles 7 and 16 of Directive 2004/38 — Application by analogy of the conditions laid down by that directive for the grant of a derived right
(Art. 21(1) TFEU; European Parliament and Council Directive 2004/38, Arts 6, 7(1) and (2), and 16(1) and (2))
3. Citizenship of the Union — Provisions of the Treaty — Scope ratione personae –Minor national of a Member State having never made use of his freedom of movement — Included — Effects — Right to reside and work of the third-county national parent responsible for the care of the minor in the Member State of which he is a national and where he is resident
(Art. 20 TFEU)
4. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Union citizen child of a third-country national –Refusal to that parent of a right of residence which might have the effect of compelling the child to leave the territory of the European Union — Relationship of dependency between the child and that parent — Other parent, a Union citizen, able and willing to assume sole responsibility for the primary day-to-day care of the child — Not a sufficient ground for conclusion that there is no relationship of dependency between the child and the third-country national parent — Assessment to be based on all the specific circumstances
(Art. 20 TFEU)
5. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Third-country national responsible for the primary day-to-day care of her child, a Union citizen — National legislation providing that the right of residence of that third-country national is subject to the requirement that the third-country national must prove that the consequences of a refusal of a right of residence might compel the child to leave the territory of the European Union— Lawfulness — Condition — Obligation on the competent national authorities to undertake the necessary inquiries to determine the consequences of such a refusal decision
(Art. 20 TFEU)
1. See the text of the judgment.
(see para. 52)
2. See the text of the judgment.
(see paras 54, 55)
3. See the text of the judgment.
(see paras 61-63)
4. Article 20 TFEU must be interpreted as meaning that for the purposes of assessing whether a child who is a citizen of the European Union would be compelled to leave the territory of the European Union as a whole and thereby deprived of the genuine enjoyment of the substance of the rights conferred on him by that article if the child’s third-country national parent were refused a right of residence in the Member State concerned, the fact that the other parent, who is a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it 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 indeed be so compelled were there to be such a refusal of a right of residence. Such an assessment must take into account, in the best interests of the child concerned, all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his 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 the child’s equilibrium.
(see para. 72, operative part 1)
5. Article 20 TFEU must be interpreted as not precluding a Member State from providing that the right of residence in its territory of a third-country national, who is a parent of a minor child that is a national of that Member State and who is responsible for the primary day-to-day care of that child, is subject to the requirement that the third-country national must provide evidence to prove that a refusal of a right of residence to the third-country national parent would deprive the child of the genuine enjoyment of the substance of the rights pertaining to the child’s status as a Union citizen, by obliging the child to leave the territory of the European Union, as a whole. It is however for the competent authorities of the Member State concerned to undertake, on the basis of the evidence provided by the third-country national, the necessary enquiries in order to be able to assess, in the light of all the specific circumstances, whether a refusal would have such consequences.
(see para. 78, operative part 2)