In a recent ruling (H.C. Chavez-Vilchez and Other), the European Court of Justice strengthened the limits imposed on Member States in interpreting the key factors of the “substance of the rights” test determines derived rights of residence for inter alia parents of EU children.

The disputes in the main proceedings and the questions referred to the ECJ

The situations at issue in the main proceedings concerns eight third-country nationals who were staying in the Netherlands without holding a residence permit, each one mother of at least one minor child of Netherlands nationality who lived with her. The mother was responsible for the primary day-to-day care of that child, and was separated from the father of the child, the father also being of Netherlands nationality and acknowledging the child as his.

The request has been made in proceedings between, on the one hand, Ms H.C. Chavez-Vilchez and seven other third-country nationals and, on the other, the competent Netherlands authorities, concerning the refusal of the former applications for social assistance and child benefit, on the ground that they did not have a right of residence in the Netherlands.

The following questions were referred to the ECJ by the Centrale Raad van Beroep (Higher Administrative Court):

1. Must Article 20 TFEU be interpreted as precluding a Member State from depriving a third-country national who is responsible for the day-to-day and primary care of his/her minor child, who is a national of that Member State, of the right of residence in that Member State?

2. In answering that question, is it relevant that it is that parent on whom the child is entirely dependent, legally, financial and/or emotionally and, furthermore, that it cannot be excluded that the other parent, who is a national of the Member State, might in fact be able to care for the child?

3. In that case, should the parent/third-country national have to make a plausible case that the other parent is not able to assume responsibility for the care of the child, so that the child would be obliged to leave the territory of the European Union if the parent/third-country national is denied a right of residence?’

The ECJ ruling:

1. Article 20 TFEU must be interpreted as meaning that for the purposes of assessing whether a child who is a citizen of the European Union would be compelled to leave the territory of the European Union as a whole and thereby deprived of the genuine enjoyment of the substance of the rights conferred on him by that article if the child’s third-country national parent were refused a right of residence in the Member State concerned, the fact that the other parent, who is a Union citizen, 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 indeed be so compelled were there to be such a refusal of a right of residence. Such an 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 must be interpreted as not precluding a Member State from providing that the right of residence in its territory of a third-country national, who is a parent of a minor child that is a national of that Member State and who is responsible for the primary day-to-day care of that 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 third-country national parent would deprive the child of the genuine enjoyment of the substance of the rights pertaining to the child’s status as a Union citizen, by obliging the child to leave the territory of the European Union, 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.

Analysis

The “substance of the rights” test determines whether the EU national would be deprived of the “genuine enjoyment of the substance of the rights granted by the Union citizenship” [Zambrano (2011)], if the parent, third country national, is not granted the right of residence. It must be observed that the test is applicable in context to other dependents of EU nationals.

The key factor of the “substance of the rights” test and serves to limit its scope, is whether the decision not to grant the right of residence, would compel the EU national to leave the EU as a whole [McCarthy (2011)].

In Dereci (2011), the ECJ held that simply having to live with spouse for financial reasons or to keep the family together is not, on its own, enough to show that the citizen would be forced to leave the EU.

In Joined cases O and S (2012), the ECJ highlighted that assessing the key factor of the “substance of the rights” test, the “legal, financial or emotional dependence” by the EU citizen on the non-EU national are “factors of relevance for the purposes of determining whether a refusal to grant a right of residence to a third-country national parent of a child who is a Union citizen means that that child is deprived of the genuine enjoyment of the substance of the rights conferred on him by that status”.

These factors, should be considered, mutatis mutandis, as relevant for other third-country nationals, family members of EU nationals, directly or indirectly beneficiaries of the Directive 2004/38/EC.

Reading in conjunction the rulings in Dereci (2011) and O and S (2012), it can be alleged that the “legal, financial or emotional dependence” represent essential factors of relevance.

In the current case, H.C. Chavez-Vilchez and Other(2015), “The Netherlands Government maintains, however, that the mere fact that a third-country national parent undertakes the day-to–day care of the child and is the person on whom that child is in fact dependent, legally, financially or emotionally, even in part, does not permit the automatic conclusion that a child who is a Union citizen would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. The presence, in the territory of the Member State of which that child is a national or in the territory of the Union, as a whole, of the other parent, who is himself a Union citizen and is capable of caring for the child, is, according to the Netherlands Government, a significant factor in that assessment.”

The ECJ held that the factor referred to by the Netherlands” 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 indeed be so compelled (to leave the EU) were there to be such a refusal of a right of residence.

It must be observed that, on the one hand, the ECJ, altered the “significant factor” (having a noticeable or major effect) and retained only a “relevant factor” (directly related, or pertinent to a topic), and on the other hand, underlined the importance of essential factors, notably the emotional ties.

Considering the third question referred and a general rule accepted in EU law, the ECJ held that “the third-country national must provide evidence to prove that a refusal of a right of residence to the third-country national parent would deprive the child of the genuine enjoyment of the substance of the rights”.

Where relevant factors, unrelated to the legal financial or emotional dependence may be invoked by the Member State concerned, the burden of proof might have the effect of encouraging the latter to be creative in invoking new factors of relevance. (despite of the Commission statement that “the competent national authorities must ensure that the application of national legislation on the burden of proof such as that at issue in the disputes in the main proceedings does not undermine the effectiveness of Article 20 TFEU”).

Conclusion

To satisfy the “substance of the rights” test, relying on derived rights of residence and merely invoking Article 20 TFEU, it might be insufficient. It is advisable instead to:

• Assess whether the national law brings any clarity and can be enforced in the case at issue.
• Bring relevant and substantial evidence of legal, financial or emotional dependence.
• Consider the other factors already admitted by the ECJ and where the case, bring relevant and substantial evidence of non-relevance.
• Assess the case at issue, determine which other factors might be invoked by the national authority, and insofar as possible bring relevant and substantial evidence of non-relevance.
• Lastly, widely rely on rights directly derived from the Treaty. Addressing only that ground, the question whether these rights are directly enforceable as the case at issue, will be most likely raised by the competent authority.

Substantial evidence means «more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (Lectric Law Library’s Lexicon).

Tanel Feldman

Immigration Law Associates

info@euimmigrationlaw.com