Zambrano meets Chavez-Vilchez

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
26 June 2017

In Zambrano the Court of Justice of the European Union found that EU citizens who are nationals of the state where they live and have never exercised their free movement right to live in another EU country have rights to the presence of their third country national family members. This doctrine was first established in 2011 and has become known as the Zambrano principle.

Very quickly it became primarily applicable to children who are not able to exercise a free movement right by themselves and rely on their parents.

However, some Immigration authorities were arguing that as long as there is a parent who is a citizen of the state, that parent should take care of the child so that the third country national parent can be expelled. Even if a citizen parent does not want to take care of the child, and the consequences may be that the child goes into social care, some Immigration authorities have considered this to be acceptable in order to be able to expel the third country national parent. Now the Court has handed down a judgement clarifying just how far Immigration authorities can go in trying to expel the mothers, before they interfere with the genuine enjoyment of the substance of the children’s citizenship rights. This is the case of Chavez-Vilchez.

Eight joined cases were referred to the CJEU by the Dutch Court. Seven member states intervened, Belgium, Denmark, France, Lithuania, Poland and the UK and Norway. In all of these cases the third country national were women who had a child in the Netherlands fathered by a Dutch man and thus the children were born Dutch. In all the cases, the children lived with their mothers but had some contact with their fathers except for one. All had been recognised by the fathers that they were their children. The mothers all applied for Child Benefits and Social Assistance on account of their lack of resources and in all cases the applications were rejected on the ground that the mothers had no right of residence in the Netherlands which meant no right to social Benefits. They appealed and eventually the matter was referred to the CJEU to discover whether these women were entitled to reside in the Netherlands as the mothers of Dutch minor children, so eligible for Social Benefits.

The Court obliged the Immigration authorities to undertake a case by case examination in the situation of each family before it could reach any decision about whether the third country national mother could be expelled. The fact that other parents of the child happened to be on the scene is not sufficient in itself to justify the foreign mother’s expulsion. The key is the relationship and dependency of the child and the third country national mother. If this relationship was sufficiently strong, that the child would leave the EU if the mother was expelled, then the Immigration authorities must not expel the mother.

The Dutch Government argued that the children could easily stay in the EU without their mothers, because they could depend on their fathers. The Court held that the relevant factor to be considered was whether the child is legally financially and emotionally dependent on the third country national parent, not whether the other parent was alive and in the state. The question is that of dependency of the child on the third country national parent, because it is that relationship of dependency which creates the risk that the child might leave the EU if the mother was expelled.

The Dutch authorities argued that it was for the third country national to establish this dependency relationship with the child, to the satisfaction of the state authorities. The Court only partially agreed with this position. It held that it was for the third country national to provide evidence on the basis of which an assessment can be made, regarding the relationship of the third country national parent and the child. But the burden of proof on the family must not be such as to undermine the effectiveness of the child’s EU citizenship rights. National legislation on the burden of proof does not relieve the authorities of their obligation to undertake the necessary inquiries on the basis of evidence provided by the family as to whether the EU citizen parent actually resides and whether the parent is or it not actually able and willing to assume the sole responsibility for the primary day to day care of the child.

The importance of this is that the best interests of European children comes first and their dependence on one or other of their parents is the key to their well-being. State authorities must take the best interests of children into account as the main factor in any decision which they make regarding the residence status of their parents.