Non-European parents of European child have EU right of residency

Non-European parents of a European child, who has the nationality of a given EU member state, have the right to live in the EU. This ruling was made by the European Court of Justice (ECJ), at risk of complicating the Brexit negotiations.

National courts should prioritise the child’s well-being and the “risks that may result for their stability by separating them from (their non-European parents).” This was the ruling from the highest court in the European Union (EU).

The EU is demanding that the rights of some three million European citizens, currently living in Great Britain, feature amongst the priority issues in the forthcoming Brexit negotiations.

The ECJ's role, and particularly in immigration matters, was one of the major issues before the British voted overwhelmingly in favour of Brexit.

Yesterday (Wednesday) the court ruled in the case of a Venezuelan who came to the Netherlands as a tourist. She subsequently gave birth to a child whose father was Dutch.

The couple moved to Germany but then separated in 2011. The mother, identified only as Chavez-Vilchez - her forename was not stated - declared that she had become solely responsible for the upbringing and well-being of the child. However, as she had no right of residence in the Netherlands, the Dutch authorities rejected her application for benefits.

When ruling upon the case the ECJ, based in Luxembourg, indicated that it had fallen to the Dutch courts to decide if Mrs Chavez-Vilchez indeed had a “right of residence” under Dutch law at the time.

However, if she was refused this right her “circumstances (as the mother) and that of the child must be examined...This should be done in the light of Article 20” of the Treaty of the European Union. This “disregards national provisions, including for decisions regarding the refusal of a right of residence to family members of an EU citizen.”

The ECJ held that if Mrs Chavez-Vilchez, or other mothers in a similar situation, were obliged to leave the given EU territory, “this would deprive children of genuine enjoyment of these rights. It would oblige such children to leave the EU territory concerned as well.”

The Brussels Times

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