delivered on 16 June 2022 (1)

Case C‑459/20

(Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Utrecht (District Court, The Hague, sitting in Utrecht, Netherlands))

(Reference for a preliminary ruling – Citizenship of the Union – Article 20 TFEU – Right of residence of a third-country national, the parent of a minor child, a Union citizen, in the Member State of which that child is a national – Child located outside the territory of the European Union – Refusal of residence likely to deprive the child of the possibility of going to the territory of the European Union – Best interests of the child – Relationship of dependency between the third-country national parent and the minor child, a Union citizen)

1.To what extent may a third-country national, the parent of a minor child, a Union citizen, have a derived right of residence, based on the provisions of Article 20 TFEU, in the Member State of which his or her child is a national, when that child has resided, since birth, outside the territory of the European Union?

2.That, in essence, is the question raised in the present case.

3.In order to reply to that question, it will be necessary to determine the extent to which the principles which the Court of Justice has identified in the judgments of 8 March 2011, Ruiz Zambrano, (2) of 15 November 2011, Dereci and Others, (3) of 6 December 2012, O and Others, (4) and of 10 May 2017, Chavez-Vilchez and Others, (5) as confirmed in the judgment of 8 May 2018, K.A. and Others (Family reunification in Belgium), (6) are applicable to a situation in which, at the time the application for the grant of a derived right of residence is lodged in a Member State, the third-country national parent and his or her child, who is a Union citizen and is a national of that Member State, do not live together and that child has never been in the territory of the European Union.

4.That analysis will require a distinction to be drawn between two situations. The first situation is one in which the third-country national parent makes a ‘sole’ application, which is unconnected with the entry or residence of the child, who is a citizen of the European Union, in the Member State whose nationality he or she holds. The second situation is one in which the application, on the contrary, is part of a ‘joint’ application made by the parent and the child who intends to exercise the freedom of movement granted to him or her by his or her status as a Union citizen, by leaving the third country in which he or she has his or her habitual residence for the Member State of which he or she is a national.

5.The reply to the question referred will also call for a number of clarifications concerning the rules for assessing the best interests of the child and also the criteria for assessing whether there is a relationship of dependency which may form the basis of a derived right of residence under Article 20 TFEU in such a situation.

II. The facts in the main proceedings and the questions referred for a preliminary ruling

6.The applicant, who has Thai nationality, resided legally in the Netherlands, where she was married to A, a Dutch national. On 28 March 2012 a child was born from that marriage and has Dutch nationality. That child, who is now 10 years old, was born in Thailand where he has been raised by his maternal grandmother, the applicant having returned to the Netherlands after the birth. The child has always lived in that third country and has never lived in the Netherlands or in any other Member State of the European Union. The applicant has visited him several times in Thailand. The child speaks neither Dutch nor English. (7)

7.By a decision of 22 May 2017, the applicant’s right of residence was withdrawn with retroactive effect from 1 June 2016, on the ground that her relationship with A had, de facto, ended on that date. The divorce was granted on 17 May 2018 and the parents had joint parental responsibility for the child by operation of law.

8.It is apparent from the file submitted to the Court that, on 14 March 2018, the applicant in the main proceedings applied for a residence permit on humanitarian grounds; that application was refused on 26 June 2018. The appeal brought against that decision was also dismissed by a judgment of 18 December 2018.

9.On 6 May 2019, the Staatssecretaris van Justitie en Veiligheid (Secretary of State for Justice and Security; the ‘Secretary of State’) notified the applicant that she was to be deported to Bangkok (Thailand) on 8 May 2019.

10.On 7 May 2019, B, a Dutch national, lodged an application for a residence permit (‘Aanvrag voor het verblijfsdoel “familie en gezin” (application for residence as a family member)’) for the purpose of family reunification with the applicant as a member of the extended family. That application was refused by decision of 8 May 2019, on the ground that there was no long-term and exclusive relationship between the applicant and B, and the latter did not have sufficient resources for that purpose. In that decision, the Secretary of State also stated that the applicant could not rely on a derived right of residence under Article 20 TFEU, as recognised by the Court in the judgment in Chavez-Vilchez and Others.

11.The applicant was deported to Bangkok (Thailand) on 8 May 2019.

12.By a decision of 2 July 2019, the Secretary of State upheld the refusal of the applicant’s application for a residence permit.

13.The applicant brought an action against the decision of 2 July 2019 on the ground that, owing to that decision, her child would be deprived of the opportunity to reside within the European Union, thus affecting his rights as a Union citizen.

14.In that regard, she claims that her child, by reason of his Dutch nationality, has the right to reside in the territory of the European Union. She also states that she has always had an affectionate relationship with him and has always been legally and financially responsible for him. Although, during the period preceding her return to Thailand, she had to deal with the matters relating to the child’s care and upbringing remotely by digital means, since her return to Thailand on 8 May 2019 she has, by contrast, been responsible for his everyday care. She adds that, by a judgment of the court in Surin (Thailand), of 5 February 2020, she was granted sole parental responsibility for him. The applicant states that her mother can no longer take care of the child for medical reasons. Furthermore, she maintains that the child’s father has never had legal, financial or emotional responsibility for his child.

15.The Secretary of State maintains, in essence, that the principles set out in the judgment in Chavez-Vilchez and Others are not applicable to a situation such as that at issue in the main proceedings because the refusal of the applicant’s residence application does not compel the child to leave the territory of the European Union, since he has resided in Thailand since his birth. The Secretary of State points out that there is no objective evidence of the fact that the applicant is actually legally, financially and emotionally responsible for her child or that such a relationship of dependency exists between the applicant and that child, or that the child would be compelled to reside outside the territory of the European Union. As regards the involvement of the child’s father, he states that the evidence submitted by the applicant is subjective. Moreover, since the judgment given by the court of Surin (Thailand) has not been certified, it cannot automatically be considered that the applicant has sole parental responsibility for her child. The Secretary of State adds that the applicant has also failed to prove that her son himself wishes to come and live in the Netherlands or that her residence permit is in his interests.

16.It is in those circumstances that the Rechtbank Den Haag, zittingsplaats Utrecht (District Court, The Hague, sitting in Utrecht, Netherlands) therefore decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Is Article 20 TFEU to be interpreted as precluding a Member State from denying a third-country national, who has a dependent minor child, a Union citizen, where that minor is in an actual relationship of dependency in respect of that third-country national, a right of residence in the Member State of which the minor Union citizen is a national, where the minor Union citizen is located outside the territory of that Member State or of the Union and/or has never been in the territory of the Union, with the result that the minor Union citizen is effectively denied access to the territory of the Union?

(2)Should (minor) Union citizens declare or demonstrate an interest in exercising the rights conferred on them by citizenship of the Union?

(a)In that regard, could a relevant factor be that, as a rule, minor Union citizens cannot independently assert their rights and have no say over their place of residence, but are dependent on their parent(s) in that respect, and that this could involve a claim being made on behalf of a minor Union citizen for the right to exercise his [or her] rights as a Union citizen, whereas that might possibly be contrary to their other interests as referred to, for example, in the judgment in Chavez-Vilchez and Others?

(b)In that connection, can the minor Union citizen, in order to be able to exercise his Union rights effectively, be required to settle on Union territory with his [or her] other parent, who is a citizen of the Union, who may no longer have parental responsibility for the minor?

(c)If so, does it make a difference whether or not that parent has or had parental responsibility and/or whether the minor is or was legally, financially or emotionally dependent on that parent and whether or not that parent is willing to take on those responsibilities and/or the care of the minor?

(3)In assessing whether there is a relationship of dependency as referred to in question (1) above, is the decisive factor whether or not the third-country national parent, prior to the application or prior to the decision refusing a right of residence, or prior to the time when a (national) court has to make a decision in legal proceedings brought because of that refusal, was responsible for the day-to-day care of the minor Union citizen, and whether there are others who were responsible for such care in the past and/or can (continue to) be responsible for it?

(a)If it were to be established that the third-country national parent has sole parental responsibility for the minor Union citizen, does that then mean that less weight should be attached to the question of the legal, financial and/or emotional dependence?

17.The Netherlands, Danish and German Governments and the European Commission have lodged written observations.

18.The parties were also invited to respond to questions for oral response addressed by the Court. They were heard at the hearing held on 23 February 2022.

III. Analysis

19.The questions which the referring court is asking the Court concern the rules for assessing whether, in a situation such as that at issue in the main proceedings, there is a derived right of residence based on the provisions of Article 20 TFEU, on which a third-country national, the mother of a minor child, a Union citizen, may rely in the Member State of which that child is a national, where that child, since birth, has had his or her habitual residence in a third country. (8)

20.As I have indicated, the answer to these questions requires a distinction to be drawn between two situations.

21.In the first situation, which, in my view, is at the heart of the first question referred, the application for the grant of a derived right of residence under Article 20 TFEU forms part of an action taken by the third-country national parent which has no connection with the entry and residence of the child, a Union citizen, in the Member State of which that child is a national. In view of the purpose and content of the application for a residence permit at issue in the main proceedings, the facts of this case seems to fall within that framework.

22.In the second situation, the application is, on the contrary, part of an action taken by the child who wishes to exercise the freedom of movement conferred on him or her by his or her status as a Union citizen, by leaving the third country in which he or she has had his or her habitual residence and moving to the Member State of which he or she is a national. That, in my view, is the situation to which the national court is referring, in essence, in its second and third questions, since it is asking the Court to specify the rules for assessing, on the one hand, the best interests of the child (second question) and, on the other hand, whether or not there is a relationship of dependency between the child and his third-country national parent or his other parent, a Union citizen (third question).

23.By its first question, the referring court is asking the Court, in essence, whether Article 20 TFEU precludes national legislation under which the right of residence of a third-country national, who has parental responsibility for her minor child, a Union citizen, is denied on the ground that that child, who is a national of that Member State, has lived outside the territory of the European Union since he was born.

24.The answer to that question must be set within the framework of the classic examination of the principles set out by the Court in the judgments of 8 March 2011, Ruiz Zambrano, (9) of 15 November 2011, Dereci and Others, (10) of 6 December 2012, O and Others, (11) and, Chavez-Vilchez and Others.

According to the principles which the Court summarised in paragraphs 47 to 52 of the judgment in K.A. and Others (Family reunification in Belgium), Article 20 TFEU confers on every individual who is a national of a Member State citizenship of the Union, which is intended to be the fundamental status of nationals of the Member States. Citizenship of the Union confers on each Union citizen a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the Treaty and the measures adopted for their implementation. In that context, the Court has held that Article 20 TFEU precludes national measures, including decisions refusing a right of residence to the family members of a Union citizen, which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status.

By contrast, the Treaty provisions on citizenship of the Union do not confer any autonomous right on third-country nationals. Any rights conferred on third-country nationals are not autonomous rights but rights derived from those enjoyed by a Union citizen. The purpose of granting those rights is to ensure that a Union citizen who has not exercised his or her right of freedom of movement may live with a family member, a third-country national, in the Member State of which he is a national, pursuant to Article 20 TFEU, thus ensuring family reunification.

The Court has held that there are very specific situations in which, despite the fact that secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his or her freedom of movement, a right of residence must nevertheless be granted to a third-country national who is a family member of that Union citizen, since the effectiveness of Union citizenship would otherwise be undermined, if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the European Union as a whole, thus depriving him or her of the genuine enjoyment of the substance of the rights conferred by that status as a Union citizen.

As the Court has pointed out, such situations have the common feature that, although they are governed by laws which fall, a priori, within the competence of the Member States, namely those concerning the right of entry and residence of third-country nationals outside the scope of provisions of EU secondary legislation, which provide for the grant of such a right under certain conditions, those situations nonetheless have an intrinsic connection with the freedom of movement and residence of a Union citizen, which precludes the right of entry and residence being refused to those nationals in the Member State of residence of the citizen, in order to avoid interference with that freedom. (12)

However, a refusal to grant a right of residence to a third-country national is capable of undermining the effectiveness of Union citizenship only if, between that third-country national and the Union citizen, who is a member of his or her family, there is a relationship of dependency which would mean that the Union citizen would be obliged to accompany the third-country national in question and leave the territory of the European Union as a whole.

I note that the terms and purpose of that case-law show that it is not designed to apply to a situation such as that at issue in the main proceedings, in which the application for a derived right of residence is made by a parent who is a third-country national, whilst the minor child, a Union citizen, does not reside and never has resided with that third-country national parent in the Member State of which he is a national and in which that application contains no indication as to the wish of the child to exercise his rights as a Union citizen by entering and residing in, with that parent, the territory of the Member State concerned.

As the Court pointed out in the judgment of 27 June 2018, Altiner and Ravn, (13)‘it is the Union citizen who is the sponsor for the grant of a derived right of residence to a third-country national who is a member of his family’. (14)

In the present case, I note that at the time the application at issue was made, the child’s mother was still living in that Member State, while her minor child, a Union citizen, has always lived in Thailand. Therefore, since the mother and her child have always lived separately in two different countries, they cannot have led a family life in practice. In those circumstances, the refusal to grant a derived right of residence to the child’s mother does not appear to infringe the right of the persons concerned to family reunification.

Moreover, on the date on which the application for residence was made, certain factors gave reason to doubt that the child’s mother intended to settle with him in the Netherlands, the Member State of which the child is a national. Following the parents’ divorce and the removal of the ‘family reunification’ residence permit held by the child’s mother, she lodged an application, on 14 March 2018, for a residence permit on humanitarian grounds, which was rejected, before making the application at issue on 7 May 2019. That application, enclosed in the national file and entitled (‘Aanvrag voor het verblijfsdoel “familie en gezin” (application for residence as a family member)’), is first and foremost an application for family reunification lodged by B, the applicant’s partner, for the benefit of the child’s mother. It is apparent from the documents in the national file that that application does not contain any indication of the specific steps which the mother has taken for the child to enter and reside with her in the Netherlands.

In those circumstances, the refusal to grant a derived right of residence to the child’s mother does not have the effect or consequence of depriving the child of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen, since he is not compelled either to leave the territory of the European Union – in which he does not reside – or to waive his right to enter and reside there – since no steps have been taken to that effect.

Such a situation, in so far as it is unconnected to the freedom of movement and residence which the minor child enjoys by virtue of his status as a Union citizen, cannot give rise to any derived right of residence under Article 20 TFEU. (15)

I therefore propose that the Court hold that Article 20 TFEU should be interpreted as not precluding a law of a Member State under which a derived right of residence in the territory of that State is denied to a third-country national, the parent of a minor child who is a national of that State, where that child has never stayed in the territory of the European Union, has his habitual residence outside that territory and does not intend to exercise the rights attaching to his status as a Union citizen by applying to enter and reside in that Member State in the company of that parent on whom he is dependent.

It is now necessary to examine the second situation, in which the application for the grant of a derived right of residence seeks, on the contrary, to ensure that the child may exercise the rights conferred on him or her by his or her status as a Union citizen, enabling him or her to enter and reside in the Member State of which he or she is a national. Enjoyment of the right of residence by a young child necessarily means that he or she is accompanied by the person who actually takes care of him or her or is legally, financially or emotionally responsible for him or her. The referring court thus expresses concern that the refusal to grant such a right of residence may, in this case, result in depriving the child of the possibility of moving and residing in the Member State of which he is a national, owing to the link of dependency which he has with his mother.

In such a situation, it is therefore necessary to make sure that the exercise of the rights attaching to the status of citizen, and the benefit of the associated derived rights, are in the interests of the child and are justified in the light of the relationship of dependency which he or she has with his or her third-country national parent.

Those aspects are analysed in the examination of the second and third questions referred.

The second question, relating to the rules for assessing the best interests of the child

By its second question, the referring court is asking the Court, in essence, to clarify the rules for assessing the best interests of the child in a situation in which the application for the grant of a derived right of residence pursuant to Article 20 TFEU is made in the context of the child’s move from the third country in which he has his habitual residence to the Member State of which he is a national.

In particular, the referring court asks the Court whether it is necessary to show that that move is of genuine or plausible interest for the child and whether the rights adhering to citizenship of the Union are absolute rights, in the sense that the Member State of which the Union citizen is a national has a positive obligation to enable him to exercise them and not to place obstacles in the way.

Those questions seem to arise from the concern expressed by the referring court with regard to the fact that the child’s move may, in this case, be primarily motivated by the wish of the mother, a third-country national, to return to the Netherlands and thus to maintain a right of residence in that Member State. In the light of those factors, in my view it is therefore important, in the answer to be given, to take into account the specific circumstances of this case and not to replace the referring court or the competent national authority in their task, namely of ruling on any circumstances surrounding the application for a derived right of residence brought by the mother of that child.

In the first place, I consider that the exercise of the rights attaching to citizenship of the Union and the benefit of the related derived rights can only be conceived in so far as they serve the best interests of the child and ensure respect for his fundamental rights, in accordance with Article 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’). (16)

In the examination of an application for the grant of a derived right of residence made in connection with the entry and residence of a child, a Union citizen, in the Member State of which he or she is a national, the assessment must therefore be carried out from the point of view of the child and not from the point of view of the third-country national parent. (17)

Article 24(1) of the Charter thus requires that the competent national authority take all the steps appropriate to provide the child concerned with a real and effective opportunity to express his or her views.

Article 24(2) of the Charter also requires the competent national authority to take the child’s best interests into consideration. It is therefore for that authority to verify, in the light of all of the current and relevant circumstances of each case, that the move of that child is being made in his or her own interests. (18) That involves checking that that move does not risk having an adverse effect on the child’s situation and that it is in his or her interests, as part of a tangible family life plan or, to use the words employed by the Commission at the hearing, a ‘credible plan’.

In that regard, very particular attention must be paid to the social and family environment of the child and, in the circumstances of the case in the main proceedings, to the plan of which that child’s move forms part and the intentions of his or her mother in that regard.

In the second place, therefore, it is necessary to examine those various criteria.

The child’s social and family environment

As a general rule, as the Court has pointed out, the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of. (19) In a situation such as that at issue in the main proceedings, where the child is aged 10 and therefore of school age, the competent national authority must therefore assess any negative effects of moving that child on his or her physical and moral well-being and on his emotional, family and social relationships or even on his or her material situation. (20)

In the present case, it is apparent from the national file that, since his birth in Thailand, the child has been raised by his maternal grandmother, so that he undoubtedly has a very strong emotional relationship with her. He is also attending school in Thailand, which is evidence of the links he has with the linguistic and cultural environment of that country where other members of his family live. In contrast, it is apparent from the national file that that child has never been to the Netherlands and that he speaks neither Dutch nor English.

However, the competent national authority must also take into account the most recent developments in the child’s family life. Accordingly, it should take into consideration the nature and intensity of the relationship which has (possibly) developed between that child and his mother since she returned to Thailand. Furthermore, although the details in the national file do not show either the nature of the relationship which A has with her child or the current extent of her contribution to his maintenance costs, it is necessary to determine whether the child’s father is unable or incapable of caring for him one day and whether that child wishes to have a personal relationship and direct contact with his father, thus claiming the benefit of the right deriving from Article 24(3) of the Charter.

The existence of a credible life plan

The competent national authority must also take into account the conditions and reasons for the child’s move from the third country in which he has his habitual residence to the Member State of which he is a national, but where he has never lived. (21) It is necessary to take into account any risk of that child being considered as the means for the third-country national to live in the territory of the European Union, which would constitute an abuse of the derived right of residence granted under Article 20 TFEU. (22)

Such an examination is all the more necessary in a situation such as that at issue in the main proceedings, in which the geographical and family origins of the child’s mother are in the third country where that child has his habitual residence and where, according to her own statements, the father and his child have little or no relationship.

In the present case, the intentions of the child’s mother, who seems to be the only person with parental responsibility for him, is therefore a particularly relevant factor.

There is little doubt that the mother wished to remain in the Netherlands when she filed the application for the residence permit at issue. Also, other factors, referred to in point 33 of this Opinion, raised doubts, at that time, about her firm intention to settle with her child in that State. Lastly, although the mother states that she has established an affectionate family life with her child since returning to Thailand, that appears to be the consequence not of a conscious decision to live with him, but of the return decision which was enforced against her on 8 May 2019.

However, a risk of abuse must also not be presumed in light only of the fact that the third-country national has lived apart from her child for several years. Accordingly, all of those circumstances cannot be regarded as irrevocably fixing the child’s place of residence in Thailand. He cannot be deprived of the opportunity to move to and reside in the Member State of which he is a national, nor can the mother of that child be deprived of the opportunity to continue, in the Netherlands, the family life which she may have started with her son in Thailand since 2019.

In those circumstances, it must be possible to trace and ascertain the mother’s intention to settle with the child in the Member State of which he is a national in objective or tangible factors, proving that that child’s move is genuine, that his stay in the Member State of which he is a national is by no means temporary or occasional and that it has been decided in his best interests. Thus, for example, the purchase or lease of a residence in that Member State (23) or enrolment at a school may constitute relatively strong indicators.

Although those factors are important, they are certainly not the only ones to be taken into consideration. The examination which the national authorities are required to make must always take place at the end of an overall assessment of the situation and balancing of all the relevant factors, with the aim of establishing the child’s family and social environment and safeguarding his or her interests.

3. Interview with the child and the third-country national parent

It seems to me that the assessment of the child’s situation cannot be made without him having had the opportunity to express his opinion regarding his wish to move and settle with his mother in the Member State of which he is a national, in accordance with Article 24 of the Charter. In the present case, although the child is still dependent on his mother, he is nevertheless now 10 years old, which is school age, and may therefore be heard, if he wishes, unlike a very young child. Moreover, it seems to me that the competent national authority must also give the person who has sole parental responsibility and who has initiated the child’s move the means of presenting her observations on the reasons for that move.

In the light of those factors, I take the view, therefore, that Article 20 TFEU should be interpreted as meaning that, in a situation in which a third-country national, the parent of a minor child, a Union citizen, lodges an application for the grant of a derived right of residence in the Member State of which the child is a national and to which he or she intends to move in order to live there, the competent authority of that Member State is required to establish that that child’s move is made in his or her best interests, in accordance with Article 24(2) of the Charter. That finding must, in the light of all the circumstances of the case, make it possible to determine any effect that move may have on the child’s physical and moral well-being, his or her material situation and his or her emotional, family and social relationships. That finding must also be based on factors which make it possible to establish that the child’s move is genuine and that his or her stay in the Member State concerned is by no means temporary or occasional and that it does not have the sole purpose of obtaining a derived residence permit based on Article 20 TFEU for one of the parents.

By its third question, the referring court asks the Court, in essence, to clarify the various criteria for assessing whether there is a relationship of dependency capable of founding a derived right of residence under Article 20 TFEU in a situation in which the minor child, a Union citizen, exercises his or her right to move and reside in the territory of the Member State of which he or she is a national.

First, the referring court asks the Court to state what importance should be attached to the moment at which the third-country national parent assumed, or not, the day-to-day care of her child, a Union citizen, and to the fact that, in the past, other persons have assumed that responsibility and/or are able to assume it in the future.

Second, the referring court wonders to what extent the child, a Union citizen, may settle in the territory of the European Union with his father, also a Union citizen. It asks the Court to state what importance should be attached to the fact that the father of that child has (or has not) had legal, financial or emotional responsibility for the child and would be prepared (or not) to take on that responsibility in the future. Furthermore, the referring court wonders about the importance of the criterion related to the legal, financial and emotional responsibility assumed by the parent, a Union citizen, for the child if it is established that the other parent, a third-country national, has sole parental responsibility for the child.

In the first place, as regards the assessment relating to the grant of a derived right of residence based on the provisions of Article 20 TFEU, the examination which the competent national authority must conduct concerns the existence of a relationship of dependency between, on the one hand, the minor child, a Union citizen, and, on the other hand, the third-country national parent. In that context, I note that the Court refers to very particular situations in which the Union citizen has no option but to follow the third-country national because he or she is in his or her care, and therefore entirely dependent on him or her to provide for and support him or her. Those situations concern above all parents, third-country nationals, who have actual care of a minor child, a Union citizen, or who have actual legal, financial or emotional responsibility for him or her. Thus, in the context of the case which gave rise to the judgment in Chavez-Vilchez and Others, the Court held that ‘the fact that the other parent, 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 be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national’. (24) The Court pointed out that ‘in reaching such a conclusion, account must be taken, in the best interests of the child concerned, of 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 that child’s equilibrium’. (25)

In my view, those principles are equally applicable to a situation such as that at issue in the main proceedings, in which the effectiveness of citizenship of the Union requires that that child is not prevented from exercising his right to move and reside in the territory of the Member State of which he is a national if his parent, a third-country national, is denied a right of residence in the Member State concerned.

It follows that the circumstances to which the national court refers, relating to the role and involvement, on the one hand, of the other parent, a Union citizen, and, on the other hand, of the child’s maternal grandmother, a third-country national, although they may be strong indicators as to that child’s family situation, are not sufficient to establish that, between the third-country national parent and the child who is a Union citizen, there is not a relationship of dependency such that the child would be denied the opportunity to exercise the rights attaching to his status as a citizen in the event of such a refusal. Such a finding must be based on the criteria laid down by the Court in the judgment in Chavez-Vilchez and Others, referred to above. In a situation such as that at issue in the main proceedings, where the child’s maternal grandmother seems to have assumed actual day-to-day care of that child during the first 10 years of his life, it is also necessary to take into account the extent of the child’s emotional ties to her and the risks that separating that child from his maternal grandmother might entail for his equilibrium.

In the second place, the moment at which the relationship of dependency began, and in particular the moment at which the third-country national parent took over daily care for her child, a Union citizen, is a decisive factor. There is no doubt, in my view, that that relationship must exist in the country in which the child, a Union citizen, is located, at least at the moment the third-country national parent applies for a derived right of residence with the child.

In the present case, the referring court distinguishes the situation preceding the application for a right of residence from that preceding the decision rejecting that application and, lastly, from that preceding the outcome of the legal action brought against that refusal decision. That court thus states that it is concerned to ensure that the relationship of dependency which the child, a Union citizen, has with his third-country national parent is genuine and has not been initiated with the sole aim of obtaining a derived right of residence based on the provisions of Article 20 TFEU.

In that regard, it must be stated that, in a situation such as that at issue in the main proceedings, the period preceding the filing of the application for a right of residence and that preceding the adoption of the refusal decision both correspond to periods during which the child, a Union citizen, and his third-country national parent did not live together or stay together in the same State, since that child was being raised in Thailand by his maternal grandmother, while his mother resided in the Netherlands. Although the Court held, in the judgments of 6 December 2012, O and Others, (26) and of 8 May 2018, K.A. and Others (Family reunification in Belgium), that it was not necessary for the third-country national parent to live with the minor child, a Union citizen, to determine that there was a relationship of dependency between them, such cohabitation is still a particularly important factor, especially in a situation such as that at issue in the main proceedings, in which, apart from the fact that that parent does not live with her child, he is in another country, on another continent, so that she has presumably not had actual day-to-day responsibility for her child during those periods.

According to the Court’s case-law, the existence of a family link, whether natural or legal, between the minor Union citizen and his third-country national parent cannot be a sufficient ground to justify the grant, under Article 20 TFEU, of a derived right of residence to that parent in the territory of the Member State of which the minor child is a national. (27)

Turning, now, to the situation preceding the outcome of the legal action brought against the refusal decision, that corresponds to a period during which the child’s family life may have experienced changes, in particular owing to the return of the third-country national parent, which should be taken into consideration. Accordingly, in view of the time limits imposed by legal proceedings, in my view the competent national court must investigate, at the time it intends to rule on the application for residence made by the third-country national, whether, since enforcement of the return decision, the factual circumstances have not developed in such a way that a relationship of dependency between the child and his mother may have arisen. In that context, in order to avoid any abusive manoeuvre, I consider it is also necessary for that court to ensure, in the light of the specific circumstances of the case, that the third-country national actually is taking care of the child or has actual legal, financial or emotional responsibility for him within the context of a genuine and stable family life.

In the light of those considerations, I therefore propose that the Court hold that Article 20 TFEU is to be interpreted as meaning that, in a situation in which a third-country national, the parent of a minor child, a Union citizen, lodges an application for the grant of a derived right of residence in the Member State of which that child is a national and to which he or she intends to move in order to live there, the moment at which the third-country national assumed the day-to-day care of his or her child constitutes a decisive factor for the purposes of assessing whether there is a relationship of dependency between that parent and that child. It is for the competent national authority to determine, in the light of all the specific circumstances of the case, the extent to which that parent assumes the care of that child or legal, financial or emotional responsibility for him or her at the time a ruling is given on his or her application and to make sure that that responsibility is exercised within the context of a genuine and stable family life.

On the other hand, it cannot be deduced from the fact that the other parent, a Union citizen, and another family member, a third-country national, have in the past assumed or are able to assume in the future the care of the child or legal, financial or emotional responsibility for him or her, that, between the third-country national parent and that child, there is no relationship of dependency such that the child would be deprived of exercising his or her right to move and reside in the territory of the Member State of which he or she is a national if the third-country national parent were refused recognition of a right of residence in the Member State concerned.

In the light of the foregoing considerations, I propose that the Court reply as follows to the questions referred for a preliminary ruling by the Rechtbank Den Haag, zittingsplaats Utrecht (District Court, The Hague, sitting in Utrecht, Netherlands):

Article 20 TFEU should be interpreted as not precluding legislation of a Member State under which a derived right of residence in the territory of that State is denied to a third-country national, the parent of a minor child who is a national of that State, where that child has never been in the territory of the European Union, has his or her habitual residence outside that territory and does not intend to exercise the rights attaching to his or her status as a Union citizen by applying to enter and reside in that Member State in the company of that parent on whom he or she is dependent.

Article 20 TFEU should be interpreted as meaning that, in a situation in which a third-country national, the parent of a minor child, a Union citizen, lodges an application for the grant of a derived right of residence in the Member State of which the child is a national and to which he or she intends to move in order to live there, the competent authority of that Member State is required to establish that that child’s move is made in his or her best interests, in accordance with Article 24(2) of the Charter of Fundamental Rights of the European Union. That finding must, in the light of all the circumstances of the case, make it possible to determine any effect that move may have on the child’s physical and moral well-being, his or her material situation and his or her emotional, family and social relationships. That finding must also be based on factors which make it possible to establish that that child’s move is genuine and that his or her stay in the Member State concerned is by no means temporary or occasional and that it does not have the sole purpose of obtaining a derived residence permit based on Article 20 TFEU for one of the parents.

As regards assessing whether there is a relationship of dependency capable of founding a derived right of residence under Article 20 TFEU, the moment at which the third-country national assumed the day-to-day care of her child constitutes a decisive factor. It is for the competent national authority to determine, in the light of all the specific circumstances of the case, the extent to which that parent assumes the care of that child or the legal, financial or emotional responsibility for him or her at the time a ruling is given on his or her application and to make sure that that responsibility is exercised within the context of a genuine and stable family life.

On the other hand, it cannot be deduced from the fact that the other parent, a Union citizen, and another family member, a third-country national, have in the past assumed or are able to assume in the future the care of the child or legal, financial or emotional responsibility for him or her, that, between the third-country national parent and that child, there is no relationship of dependency such that the child would be deprived of exercising his or her right to move and reside in the territory of the member State of which he or she is a national if the third-country national parent were refused recognition of a right of residence in the Member State concerned.

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(1) Original language: French.

(2) C‑34/09, EU:C:2011:124.

(3) C‑256/11, EU:C:2011:734.

(4) C‑356/11 and C‑357/11, EU:C:2012:776.

(5) C‑133/15, ‘the judgment in Chavez-Vilchez and Others’, EU:C:2017:354.

(6) C‑82/16, ‘the judgment in K.A. and Others (Family reunification in Belgium)’, EU:C:2018:308.

(7) The English language is also a language commonly used in the Netherlands.

(8) With regard to the interpretation of the concept of ‘habitual residence’, see, in connection with the interpretation of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, judgment of 28 June 2018, HR (C‑512/17, EU:C:2018:513), in which the Court states that ‘the child’s place of habitual residence for the purpose of Regulation No 2201/2003 is the place which, in practice, is the centre of that child’s life’ (paragraph 42), and judgment of 22 December 2010, Mercredi (C‑497/10 PPU, ‘the judgment in Mercredi, EU:C:2010:829’), in which the Court had already held that the concept of ‘habitual residence’ corresponds to the place which reflects some degree of integration by the child in a social and family environment (paragraph 47).

(9) C‑34/09, EU:C:2011:124.

(10) C‑256/11, EU:C:2011:734.

(11) C‑356/11 and C‑357/11, EU:C:2012:776.

EU:C:2012:776

(12) See judgment in Chavez-Vilchez and Others (paragraph 64 and the case-law cited).

(13) C‑230/17, EU:C:2018:497.

(14) Paragraph 27 of that judgment and the case-law cited.

(15) See, in that regard, judgment of 27 June 2018, Altiner and Ravn (C‑230/17, EU:C:2018:497), in which the Court held that ‘the fact that the submission of the application for a residence permit was not “a natural consequence” of the return of the Union citizen is a relevant factor which, although not decisive in itself, may, in the context of an overall assessment, lead the Member State of origin of the Union citizen in question to conclude that there is no link between the application and the exercise by that citizen of his freedom of movement and, consequently, to refuse to issue such a residence permit’ (paragraph 34).

(16) See, most recently, judgments of 11 March 2021, État belge (Return of the parent of a minor) (C‑112/20, EU:C:2021:197, paragraph 26 and the case-law cited), and of 14 December 2021, Stolichna obshtina, rayon ‘Pancharevo’ (C‑490/20, EU:C:2021:1008, paragraphs 59 and 63).

(17) See, in that regard, the position taken by Advocate General Cruz Villalón in Mercredi (C‑497/10 PPU, EU:C:2010:738, point 93). In context, I take the view that that assessment is no different from that which must be carried out by the competent national authorities when they have to rule on parental responsibility when the child is moved from one Member State to another Member State.

(18) See judgment of 26 March 2019, SM (Child placed under Algerian kafala) (C‑129/18, EU:C:2019:248, paragraph 68 and the case-law cited).

(19) See judgment in Mercredi (paragraphs 53 and 54).

(20) See, in line with the principles set out by the Court, judgment of 27 October 2016, D. (C‑428/15, EU:C:2016:819, paragraph 59).

(21) See, by analogy, judgment of 2 April 2009, A (C‑523/07, EU:C:2009:225, paragraph 44), and judgment in Mercredi (paragraph 44).

(22) Paragraph 71 that judgment. Emphasis added.

(23) See also judgment in K.A. and Others (Family reunification in Belgium) (Paragraph 72).

(24) C‑356/11 and C‑357/11, EU:C:2012:776.

(25) See judgment K.A. and Others (Family reunification in Belgium) (paragraph 75).