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CJEU Grand Chamber delivers judgment in Chavez Vilchez on rights to reside

DATE: 12 May 2017

On 10 May 2017, the CJEU Grand Chamber delivered its judgment in Chavez Vilchez, an important case on the scope of the right of residence arising under the Zambrano principle. The case involved a number of joined cases referred from the Dutch courts. They all raised, in different factual scenarios, the issue of the circumstances in which a Zambrano right of residence may arise for a third-country national parent of an EU citizen child who has not left his or her Member State of nationality. In particular, the Grand Chamber examined the nature of the relationship with the host Member State parent which was required in order to be able to demonstrate that the child would not be required to leave the territory of the EU on the departure of the third-country national parent. It also examined the degree to which Member States may require applicants to demonstrate such links, and whether there is any investigate duty on the Member State authorities.

The Grand Chamber held that:

1. Article 20 TFEU must be interpreted as meaning that the fact that the EU citizen parent 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 EU if a right of residence were refused. The 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.

2. Article 20 TFEU does not preclude a Member State from providing that the right of residence in its territory of a third-country national, who is responsible for the primary day-to-day care of an EU citizen 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 would deprive the child of the genuine enjoyment of the substance of the rights as an EU citizen, by obliging the child to leave the territory of the EU 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.

David Blundell represented the United Kingdom government, who intervened in the case, at the written representations stage. The judgment can be found here.