Think Of The Children: The Ecj Clarifies The Condition Of Non-Eu Parents Of Eu Citizen Children Living Inwards Their Ain Fellow Member State

Professor Steve Peers

What immigration rights produce non-EU citizens receive got nether European Union law? There are iii principal areas of European Union police pull that address this issue: European Union immigration too asylum law; European Union treaties alongside non-EU countries; too European Union gratis motion law. The latter expanse of police pull is focussed on European Union citizens’ correct to displace betwixt Member States, too so only covers non-EU citizens if they are household unit of measurement members of European Union citizens who receive got moved to approximately other Member State. Those rules besides apply past times analogy where an European Union citizen alongside a non-EU household unit of measurement fellow member has moved to approximately other Member State, so moved dorsum to that citizen’s abode Member State. (These are known equally Surinder Singh cases: run into this discussion of the ECJ’s most recent ruling on such cases, from 2014).

But what if an European Union citizen has a non-EU household unit of measurement member, but has never moved to approximately other Member State? Such cases autumn exterior the compass of European Union gratis motion law. They volition thence inward regulation autumn alone inside the compass of national law, unless either European Union immigration too asylum police pull or European Union treaties alongside non-EU countries apply (they ordinarily volition not). But inward a limited number of cases, at that topographic point is a fourth category of European Union police pull which powerfulness apply to them: European Union citizenship law.

This regulation was showtime gear upwardly out inward the 2011 judgment inward Ruiz Zambrano, which concerned Belgian children living inward Kingdom of Belgium alongside 2 non-EU parents. The ECJ ruled that expelling the non-EU parents would inward effect would final result inward the divergence of the children from the EU, thereby risking the ‘genuine enjoyment of the substance’ of those children’s European Union citizenship rights.

Subsequent ECJ example police pull (discussed here) made clear that this regulation is plainly restricted to the non-EU parents of European Union citizen children living inward their abode State. Cases rattling like to Zambrano – 2 non-EU parents of an European Union kid – are rare, because Member U.S. of A. right away rarely, if ever, confer nationality upon children only because they are born on the territory. However, at that topographic point are rather to a greater extent than cases where: a) a home-State European Union citizen marries a non-EU citizen, b) their kid gets home-State citizenship because 1 of her parents is a home-State citizen; too c) the parents’ human relationship ends.

In those cases, Ruiz Zambrano silent potentially applies, equally long equally the non-EU rear is the ‘primary carer’ for the home-State European Union citizen child. In that case, removing this rear to a non-EU province would inward effect forcefulness the European Union citizen kid to leave of absence the European Union equally well.  But when precisely does the ‘primary carer’ examination apply? The ECJ clarified this number inward today’s of import judgment inward Chavez-Vilchez too others.

Judgment

Chavez-Vilchez too others concerned a number of non-EU parents of Dutch children inward the Netherlands, who sought to struggle that they were primary carers of those children, too so entitled to residence inward accordance alongside the Ruiz Zambrano judgment. The Dutch regime argued that they could non automatically endure considered primary carers if it was possible for the other parent, ie the Dutch citizen, to bring attention of the children:

…the mere fact that a third-country national rear undertakes the day-to–day attention of the kid too is the someone on whom that kid is inward fact dependent, legally, financially or emotionally, fifty-fifty inward part, does non allow the automatic conclusion that a kid who is a Union citizen would endure compelled to leave of absence the territory of the European Union if a correct of residence were refused to that third-country national. The presence, inward the territory of the Member State of which that kid is a national or inward the territory of the Union, equally a whole, of the other parent, who is himself a Union citizen too is capable of caring for the child, is, according to the Netherlands Government, a pregnant constituent inward that assessment (para 66)

While the Court of Justice agreed that the non-EU parents could non automatically endure considered equally primary carers where the abode province European Union citizen kid was subject upon them, the Court’s approach was to a greater extent than open. It began past times restating prior example law: the cardinal number was ‘who has custody of the kid too whether that kid is legally, financially or emotionally subject on the third-country national parent’ (para 68). It so reiterated, next Zambrano, that dependency was peculiarly pregnant (para 69). Then it added novel exceptional on how to assess dependency:

…it is of import to determine, inward each example at number inward the principal proceedings, which rear is the primary carer of the kid too whether at that topographic point is inward fact a human relationship of dependency betwixt the kid too the third-country national parent. As business office of that assessment, the competent authorities must bring concern human relationship of the correct to abide by for household unit of measurement life, equally stated inward Article 7 of the Charter of Fundamental Rights of the European Union, that article requiring to endure read inward conjunction alongside the obligation to bring into consideration the best interests of the child, recognised inward Article 24(2) of that charter (para 70).

For the purposes of such an assessment, the fact that the other parent, a Union citizen, is truly able too willing to assume sole responsibleness for the primary day-to-day attention of the kid is a relevant factor, but it is non inward itself a sufficient ground for a conclusion that at that topographic point is not, betwixt the third-country national rear too the child, such a human relationship of dependency that the kid would endure compelled to leave of absence the territory of the European Union if a correct of residence were refused to that third-country national. In reaching such a conclusion, account must endure taken, inward the best interests of the kid concerned, of all the specific circumstances, including the historic catamenia of the child, the child’s physical too emotional development, the extent of his emotional ties both to the Union citizen rear too to the third-country national parent, too the risks which separation from the latter powerfulness entail for that child’s equilibrium. (para 71; emphases added)

The Court went on to respond questions from the national courtroom close the burden of proof inward Zambrano cases, which were connected alongside the noun examination to endure applied. The Dutch regime had argued:

…the burden of proof of the being of a correct of residence nether Article 20 TFEU lies on the applicants inward the principal proceedings. It is for them to demonstrate that, because of objective impediments that foreclose the Union citizen rear from truly caring for the child, the kid is subject on the third-country national rear to such an extent that the number of refusing to grant that third-country national a correct of residence would endure that the kid would endure obliged, inward practice, to leave of absence the territory of the European Union (para 74).

Although the ECJ accepted that the burden of proof lay upon the non-EU rear (para 75), it besides ruled that national authorities ‘must ensure that the application of national legislation on the burden of proof’ inward such cases ‘does non undermine the effectiveness’ of European Union citizenship rights (para 76). This meant that the authorities had to brand ‘the necessary inquiries’ to notice out where the European Union citizen rear lived, ‘whether that rear is, or is not, truly able too willing to assume sole responsibleness for the primary day-to-day attention of the child’ too whether the European Union citizen kid was subject upon the non-EU rear (para 77).

In effect, the Court ruled that spell the non-EU citizen must brand a prima facie case, national authorities part approximately of the burden to investigate approximately aspects of the case. Again, the noun examination applicable is less stringent than urged past times the Dutch government.

Comments

Today’s judgment clarified a number of issues relating to Zambrano cases, next on from concluding year’s judgments inward CS too Rendón Marín (discussed here) which clarified when non-EU Zambrano parents could endure expelled for populace policy reasons. While the 2016 judgments referred to the child’s best interests, age, province of affairs too dependency (referring to example police pull of the European Court of Human Rights), today’s judgment besides refers to ‘physical too emotional development’, ‘emotional ties’ to both parents, too the effect of separation on the child. All of these are factors relating to the child, non to the non-EU parent; but all of them yet concern the child’s links alongside that parent.  

The Dutch government’s desired focus on the capability of the European Union citizen rear takes a dorsum topographic point to the child’s best interests, equally farther elaborated past times the Court. This volition protect to a greater extent than non-EU parents, but inward a differential way. Oddly, the Court’s example police pull does non bring limited concern human relationship of situations of articulation custody, or the to a greater extent than full general declaration that the child’s best involvement volition ordinarily endure to keep strong relationships alongside both parents (assuming they are non negligent or abusive).

Could it besides endure argued that the requirement of e'er seeking to position a ‘primary carer’ is problematic from the hollo for of stance of sex equality?  Due to the sectionalisation of labour relating to kid attention inward practice, the Court’s rulings would assort to a greater extent than non-EU mothers than non-EU fathers equally ‘Zambrano carers’; but the expulsion of those fathers volition only increase the childcare demands on the European Union citizen woman rear who remains, equally good equally disrupt the child’s correct to keep a human relationship alongside his father. Of course, the presence of the rear who looks after a kid day-to-day is essential; but children dearest the rear who kicks the ball equally good equally the rear who cooks the meal.

The procedural aspects of the Court’s judgment are interesting, but heighten farther questions: is at that topographic point a correct to appeal, to a conclusion inside a reasonable time, to a lawyer, to legal aid? In concluding year’s judgments, the Court of Justice referred to concepts from European Union gratis motion police pull too its relevant example police pull when discussing the noun examination for expelling Zambrano carers; but it made no such cross-references today. The long-term immigration condition of the rear is besides an opened upwardly question, although Zambrano noted that at that topographic point should endure access to work to brand the residence rights of the rear effective.

Finally, a Brexit point: the draft European Union position for negotiating acquired rights does not appear to encompass Zambrano carers. From a technical hollo for of view, this is logical because the example police pull concerns (from the UK’s perspective) non-EU parents of United Kingdom of Great Britain too Northern Ireland of Britain too Northern Republic of Ireland citizens who receive got non moved inside the EU. So no gratis motion rights receive got been acquired; nosotros are rather talking of European Union citizenship rights which volition necessarily endure lost when the United Kingdom of Great Britain too Northern Ireland of Britain too Northern Republic of Ireland ceases to endure a Member State, since citizenship of the European Union is defined equally deriving from the nationality of a Member State. But from a human hollo for of view, whatsoever deterioration inward legal condition could harm or fifty-fifty shatter the household unit of measurement lives of the children concerned. Zambrano carers should thence endure protected ideally inward the Brexit talks, or failing that past times the United Kingdom of Great Britain too Northern Ireland of Britain too Northern Republic of Ireland unilaterally.


See also farther reading on United Kingdom of Great Britain too Northern Ireland of Britain too Northern Republic of Ireland Zambrano case police pull past times Charlotte O'Brien too Desmond Rutledge

Barnard & Peers: chapter 13

JHA4: chapter I:6

Photo credit: High German diplomatic mission London

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