Non-EU parents of European children have right to EU residence, ECJ rules

Non-EU parents whose children are European Union citizens could have the right to live in the bloc and receive child support from the state, the European Court of Justice has ruled 

11 May 2017, 8:35am
The court argued that any threat to the mother's right to remain in the EU would deprive the child of the
The court argued that any threat to the mother's right to remain in the EU would deprive the child of the "genuine enjoyment" of her own rights under European law
People from outside the EU whose child is a citizen have a right to live there even if the other parent is an EU national and capable of childcare, Europe’s top court has ruled.

The European Court of Justice made the judgement yesterday in the case of a woman from Venezuela who had a child with a Dutch citizen from whom she has since legally separated. The woman was denied social welfare and child benefit payments by Dutch authorities.

The court argued that any threat to the mother's right to remain in the EU would deprive the child of the "genuine enjoyment" of her own rights under European law.

In a previous judgement the ECJ ruled that non-EU nationals had a right of residence if they were the main carer of a child whose other parent was from the EU. But governments in some EU countries, including the Netherlands and the UK, had interpreted this in a restrictive way and applied it only in extreme circumstances, such as if the other parent from the EU were in prison, for example.

In Wednesday’s judgement, the court clarified that countries cannot automatically refuse right of residence to a non-EU national with a child born in the EU simply because the other parent is technically available to care for the minor. Instead, authorities must take account of a child’s age, the “extent of [their] emotional ties” to both parents and whether refusing the right of residence to a parent would hinder the child’s rights as an EU citizen.

The ruling applies to cases where the child has a relationship of dependency on a parent which means the child would have to leave the territory of the EU if the parent did.

The rights of non-EU citizens in the EU have come to the fore as Britain prepares to negotiate to leave.

The EU has said that questions about the status of Britons in the remaining 27 EU countries, and of those countries' nationals in the UK, must be resolved as a priority in negotiations. From the start of the Article 50 exit process in March, Brussels has demanded that EU citizens in the UK are guaranteed the rights they have under EU law for life.

The ECJ's "interference" in national court judgements about migration was cited by some who advocated for the UK to leave the EU.

On Thursday afternoon, the European Parliament will hold a hearing into the rights of EU citizens in the UK.