The rights of EU national children born to a non-EU national parent were more clearly defined by the Grand Chamber of the European Court of Justice (“the ECJ”) in the judgment to the case of Chavez-Vilchez and Others (Case C-133/15), handed down on 10 May 2017. The ECJ held that EU national children’s enjoyment of their rights under Article 20 TFEU includes the right for the non-EU national parent upon whom they are dependent to remain in the Member State in which the EU national child is a citizen. This judgment reflects the need to take the best interests of the child into account when making immigration decisions.
EU National Children – Background to Chavez-Vilchez and Others
The case of Chavez-Vilchez and Others concerned EU national children born to non-EU national mothers in the Netherlands. Chavez-Vilchez, upon whom the case centred, was a Venezuelan national who travelled to Europe on a tourist visa and entered into a relationship with a Dutch national. The couple had a child, and lived in Germany together until they separated and Chavez-Vilchez returned to the Netherlands, taking sole custody of their child, with whom she lived in an emergency refuge. Chavez-Vilchez was refused social welfare, and it was decided by a Court in the Netherlands that she did not have a right of residence in that country, and would be required to leave under a stringent interpretation of the Zambrano principle. The case was referred to the ECJ in order to clarify whether this interpretation complied with EU law.
The Rights of EU National Children Under Zambrano and Chavez-Vilchez and Others
The judgment handed down in the case of Zambrano in 2011 held that Member States are unable to refuse a non-EU national parent with dependent EU national children the right of residence in the Member State of residence and nationality of their child or children. However, this judgment has been the subject of increasingly stricter interpretation, to the point that immigration authorities will remove a non-EU national parent if there is an EU national parent who can look after the child and who is a citizen of the Member State. This can be the case even if the EU national parent does not want to take care of the EU national child.
In Chavez-Vilchez and Others, the ECJ took steps to realign the interpretation of Zambrano with its original purpose, which was to respect ‘the genuine enjoyment of the substance of rights conferred by virtue of their status as citizens of the Union’ under Article 20 TFEU. This includes the rights of EU national children, with the enjoyment of those rights including the right to live with the non-EU national parent. Doing so marries with the aim of taking into account the best interest of the child, which the ECJ holds to be the main factor when making a decision regarding the residence status of that child’s non-EU national parent. It needed to be established in the eyes of the ECJ, importantly, that any EU national children were solely dependent on their non-EU national parent – and that this dependence was not overridden by the presence of an EU national parent, as had previously been the case in the more recent interpretations of Zambrano.
What Chavez-Vilchez and Others Means for EU National Children Born in the United Kingdom
The need to respect ‘the genuine enjoyment of the substance of rights conferred by virtue of their status as citizens of the Union’ under Article 20 TFEU currently extends to children from the United Kingdom, and will do at least until Brexit is enacted. The ruling of Chavez-Vilchez and Others therefore applies to the non-EU national parents of children born in the United Kingdom, and if dependency can be proven then a right of residence can be claimed by that parent. The ruling also states that the non-EU national parent will have the right to social welfare benefits in the United Kingdom along with that right to residence.
In a broader interpretation of Chavez-Vilchez and Others, it is apparent that the best interest of the child is paramount in immigration decisions, which can be seen in the instance of Rendon Marin and CS, whereby Member States were precluded from expelling criminal non-EU national parents without first applying a very stringent proportionality test, and is thus confirmed by the case of Chavez-Vilchez and Others.
The judgment of the Grand Chamber of the ECJ can be accessed here: Chavez-Vilchez and Others (Case C-133/15).
Using Legal Representation to Regularise Your Immigration Status in the United Kingdom as the Parent of EU National Children
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to apply for Leave to Remain in the United Kingdom.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
Successful Leave to Remain Applications as the Parent of EU National Children
Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application and ensure that you meet all the requirements of the relevant rules.
We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.
Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.
Contact our London immigration solicitors on 02071830570 or complete our contact form.