Personal Immigration

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

The Facts

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).

The Grand Chamber concluded at paragraph 71 that:

“the fact that the other parent, 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 be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. In reaching such a conclusion, account must be taken, in the best interests of the child concerned, of 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 that child’s equilibrium.”

(emphasis added)

Insofar as the burden of proof is concerned, the Grand Chamber confirmed that it lies on the Applicant to prove that the EEA national child is dependent on the TCN parent to such an extent that refusing to grant the TCN parent a right to reside in the Member State would oblige the EEA national child, in reality, to leave the EU territory.

However, when assessing the case, the decision maker is obliged to undertake the necessary enquiries to determine where the EEA national parent resides, and to examine 1) whether the EEA national parents is actually able and willing to assume sole responsibility over the EEA national child and 2) whether there is such a relationship of dependency between the TCN parent and the EEA national child that a decision refusing the TCN the right to reside in a Member State would deprive the child of the genuine enjoyment of the substance of the rights attached to the child’s Union citizenship status.

Commentary

Paragraph 71 & 72 of the Judgement is a significant departure from the Home Office’s approach to cases involving derivative right of residence. It is not uncommon for the Home Office to refuse to grant a derivative right of residence on the mere grounds that the father can assume responsibility. The Home Office tend to consider rather irrelevant if the father is unwilling and unable to care for the child. The Grand Chamber in this case goes much further, and holds that the presence of another parent who is willing and able to assume responsibility of the child is not, in and of itself, a sufficient ground to refuse derivative right of residence.

Whilst Chavez-Vilchez may be a marked departure from the way in which the Home Office determines cases of this nature, it is less clear whether domestic caselaw is in conflict with the Chavez-Vilchez.

Perhaps the most obvious difference between Chavez-Vilchez and domestic jurisprudence is that the former has the best interest of the child at the forefront of the assessment. In Hines v London Borough of Lambeth [2014] EWCA Civ 660, for example, having considered Harrison v Secretary of State for the Home Department [2012] EWCA Civ 1736, the Court of Appeal held that:

“21. …[Harrison] was also right to point out that what amounts to circumstances of compulsion may differ from case to case. As Elias LJ said: "to the extent that the quality or standard of life [of the EU citizen] will be seriously impaired by excluding the non EU national, that is likely in practice to infringe the right of residence itself because it will effectively compel the EU citizen to give up residence and travel with the non-EU national". It is for this reason that the welfare of the child in this case comes into play…

22. In my judgment, however, the welfare of the child cannot be the paramount consideration because that would be flatly inconsistent with the statutory test which is whether the child would be unable to reside in the UK if the mother left. It will, in normal circumstances, be contrary to the interests of a child for one of its parent carers, whether the primary carer or not, to be taken away from him or her. It would certainly be contrary to article 24(3) of the Charter. But Mr Berry shied away from contending that the Immigration Regulations were inconsistent with EU law or that they should be read down so as to comply with it.”

Hines appears to consider that the best interest of a British citizen child is not the primary consideration in derivative right of residence cases. Chavez-Vilchez has on the other hand provided particularised considerations referring to the best interest of the child, mindful that it remains a primary consideration.

Whatever the case may be, Chavez-Vilchez is certainly a favourable Judgment to those who rely on derivative rights of residence. In particular, the Home Office has all too often requested evidence of the EEA national parent being absent, which can be difficult to prove. As one client once said, ‘how do you prove the absence of something?’. Chavez-Vilchez is helpful in expressly holding that decision makers bear burden to establish the whereabouts of the EEA national parents in derivative right of residence cases.

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