Extending the Scope of EU Law to Internal Situations: “In the Child’s Best Interests We Swear, but not a step further”
By Iris Goldner Lang,* Jean Monnet Professor of EU Law and Holder of the UNESCO Chair on Free Movement of People, Migration and Inter-Cultural Dialogue, University of Zagreb.
In recent years, the best interests of the child have been explicitly recognised in several opinions of Advocates General and in judgments of the Court of Justice. This has happened in the context of family reunification cases involving third-country national (TCN) parents or stepparents of minor EU citizens who have not exercised their free movement rights and could, thus, be characterised as internal situations. Even though the Court of Justice in Zambrano did not mention the child’s best interests, it relied on the criterion of the dependency of EU citizen children on their TCN parent as the crucial factor for determining whether the refusal to grant a residence permit to a TCN national parent would deprive his/her EU citizen children of the right to reside in the EU. Zambrano is the case in which the Court – for the first time – labelled the EU citizen’s right to move and reside, contained in articles 20 and 21 TFEU, as “the genuine enjoyment of the substance of one’s EU citizenship rights” (para. 45), which places the situation in question within the scope of EU law, despite the existence of an internal situation. This text aims to explore whether the notion of dependency and the principle of the child’s best interests add anything new to the Zambrano logic by broadening the reach of EU law to more internal situations. We discuss in a first part will discuss Cases O, S & L and Alfredo Rendon Marin and C.S. The second part will focus on the cases Chavez-Vilchez and Others and K.A. and Others, as the most recent judgments which develop the notion of dependency and the principle of the child’s best interests.
The Cases O, S & L and Alfredo Rendon Marin and C.S.
The first family reunification cases confined to internal situations, which mentioned the child’s best interests, were Joined O, S & L decided on 2 December 2012. The cases concerned two TCN women residing in Finland. Both women were first married to Finnish nationals with whom they had Finnish children, but then divorced and remarried with TCNs with whom they had TCN children. The TCN husbands were refused the right to reside in Finland.
Here, the main issue was whether EU citizenship provisions preclude a Member State from refusing to grant a TCN a residence permit on the basis of family reunification, where that TCN wishes to reside with his TCN wife and his TCN child, and where the TCN wife resides lawfully in the host MS and is the mother of an EU citizen child from a previous marriage. Undoubtedly, this is very complicated! The question put by the national court was whether the EU citizenship provision contained in Article 20 TFEU precludes the TCN – who lives together with his TCN spouse and her EU citizen child, of whom he is not the biological father and does not have custody – from being refused a residence permit because of a lack of means of subsistence.
The Court first ascertained that the principle established in Ruiz Zambrano is not confined to situations in which there is a blood relationship between the TCN for whom the right of residence is sought and the minor EU citizen from whom that right is derived (para. 55). However, – relying on the criterion of dependency – the Court determined that there is no legal, financial or emotional dependency between the minor EU citizens and the TCNs for whom the right of residence was sought (para. 56). Consequently, the Court stated that article 20 TFEU does not preclude Member States from refusing to grant a residence permit to a TCN who resides with his legally resident TCN spouse, who is the mother of an EU citizen child from her previous marriage, provided that such a refusal does not entail, for the minor EU citizen concerned, the denial of the genuine enjoyment of the substance of his/her EU citizenship rights (para. 58).
Interestingly, when interpreting EU citizenship rights, the Court did not invoke the principle of the child’s best interest, but seemed to imply that – since there is no dependency between Finnish children and their TCN stepfathers – there is no violation of the child’s best interests if the TCN stepfathers are denied the right to reside in the EU. The principle of the child’s best interest, therefore, seems to be entailed in the notion of dependency. On the other hand, the non-existence of dependency between EU citizen children and their TCN stepfathers places the situation outside the scope of article 20 TFEU, since there is no breach of the genuine enjoyment of the substance of the children’s EU citizenship rights.
In contrast, in O, S & L, the Court did rely on the principle of the child’s best interests when addressing the applicability of Directive 2003/86 on the right to family reunification of TCNs, even though the national court did not refer a preliminary question on the interpretation of this Directive. The Court established the applicability of the Directive to the present case and followed the Opinion of AG Bot by ascertaining that the Directive must be applied in the light of Articles 7 and 24 of the Charter, stipulating the principles of the right to family life and of the child’s best interests (para. 80). The Court did not go as far as AG Bot, who quoted the ECtHR when saying that “only exceptional circumstances may lead to a severing of the family ties and that everything must be done to preserve personal relations and family unity or to ‘rebuild’ the family” (para. 73). It, nevertheless, concluded that the national court is obliged to “make a balanced and reasonable assessment of all the interests in play, taking particular account of the interests of the children concerned” (para. 81).
Obviously, the Court’s choice to rely on the principle of the child’s best interests in relation to Directive 2003/86 – and not in relation to article 20 TFEU – suggests that the Court starts from the premise that the relationship of the dependency of TCN children on their TCN fathers, who are refused the right of residence in Finland, is much stronger than the relationship of dependency between the same TCNs and their EU citizen stepchildren. It seems that, in this case, blood relationship does play a role, after all.
However, in Alfredo Rendon Marin and C.S., the Court explicitly states that the reading of article 20 TFEU has to take into account the child’s best interests, recognised in Art. 24(2) of the Charter (para. 81). The cases concerned the question whether article 20 TFEU precludes a Member State from expelling from its territory a TCN due to his/her criminal record, where that TCN is the parent and the primary carer of an EU citizen child. The crucial difference. – in the context of the discussion of the principle of the child’s best interests – is the fact that in Rendon Marin and C.S the TCNs facing expulsion were the primary carers of the EU citizen children, whereas in O., S. & L. they were not. Consequently, by refusing the right of residence to Mr. Rendon Marin and to Ms. C.S., their EU citizen children would most likely have to leave the EU and would therefore be deprived of the genuine enjoyment of the substance of their EU citizenship rights as expressed in Zambrano. For this reason – unlike in O., S. & L. – the situations in Rendon Marin and C.S. are within the scope of article 20 TFEU, which automatically entails the applicability of the Charter.
In the cases of Rendon Marin and C.S., the Court seems to suggest that the obligation to take into account the child’s best interests follows as a consequence of the fact that the situation falls within the scope of article 20 TFEU. On the other hand, in O, S & L, the Court seems to follow the reverse logic: the (non) existence of dependency – which entails due regard of the child’s best interests – places the situation within or outside the scope of article 20 TFEU. It seems that the child’s best interests is both the precondition for and the consequence of the application of article 20 TFEU.
The cases of Chavez-Vilchez and Others and K.A. and Others
In another recent judgment in this line of cases – Chavez-Vilchez and Others – the Court reiterates the importance of interpreting article 20 TFEU by taking into account the existence of a relationship of dependency between the EU citizen child and the TCN parent, which entails the principle of the child’s best interests. The case concerned Ms. Chavez-Vilchez and seven other individuals who were all TCN mothers of one or more Dutch children whose fathers were also Dutch. All the children lived mainly or exclusively with their mothers. Except for the child of Ms. Chavez-Vilchez, all the other EU citizen children had never exercised their free movement rights so the situations were purely internal. The question posed by the national courts was whether the TCN mothers could acquire the right of residence based on article 20 TFEU, as that would, where appropriate, enable them to acquire social assistance or child benefits under Dutch law. The national court, in particular, wanted to know whether it mattered that the children were entirely legally, financially and/or emotionally dependent on the TCN mothers and that it could not be excluded that the Dutch national fathers might, in fact, be able to care for the children.
Significantly, Chavez-Vilchez offers a more child-friendly reading of article 20 TFEU than the one contained in Dereci. It does so by clarifying the criterion of “the genuine enjoyment of the substance of EU citizenship rights”, when applied to children, and therefore partly rectifying the vagueness and obscurity of the judgment in Dereci.
To refresh your minds, Mr. Dereci was a Turkish national who entered Austria illegally, married an Austrian national and the couple had three Austrian children who were all minors when Mr. Dereci was refused a residence permit. In Dereci, the Court implicitly stated that the EU citizen children would not be forced to leave the EU if their TCN father was forced to leave, because their EU citizen mother was entitled to stay in the EU. In other words, the criterion of the genuine enjoyment of the substance of EU citizenship rights of EU citizen children remained intact. According to the Court in Dereci, this applied even if the family was being severed and consequently exposed to emotional and financial difficulties, or even if the whole family, including the EU citizen children, would have to leave the EU if they wanted to stay together (para. 68). Obviously, even though in theory the EU citizen mother and her children had the choice whether to stay in the EU or leave, this choice would have serious implications for the children and would certainly not be in their best interests. However, in Dereci, the Court suggests that the Charter is not applicable, by indirectly stating that the situation was outside the scope of article 20 TFEU, because the EU citizen children were, at least in theory, not forced to leave the EU, due to the fact that their EU citizen mother was entitled to stay.
On the other hand, in Chavez-Vilchez, the Court elaborates that the right of residence in the EU of an EU citizen child can be violated even if the child is theoretically not forced to leave the EU due to the fact that one parent is entitled to stay. According to the Court, this can happen in a situation where the child would in practice be compelled to leave the EU, due to the child’s legal, financial and/or emotional dependency on the TCN parent. The Court thus states that the fact that the EU citizen parent is “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 TCN parent and the child, such a relationship of dependency” that the child would be compelled to leave the EU if the TCN parent was refused the right of residence (para. 72). The Court further elaborates that “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” (para. 72). In other words, if depriving the TCN parent of the right of residence would be against the child’s best interests, due to the child’s dependency on the TCN parent, the TCN parent has a derived right of residence in the EU, based on the child’s “genuine enjoyment of the substance of EU citizenship right” contained in article 20 TFEU. The fact that – unlike Dereci, where both the TCN and the EU citizen parents lived together with their EU citizen children and jointly took care of them – only the TCN parents were the primary carers of the EU citizen children, while the Dutch national fathers did not live with the children, should not change the reading of the judgment in Chavez-Vilchez.
The most recent in this line of cases is Case C-82/16 K.A. and Others. The case concerns seven TCNs who have been subject to orders to leave Belgium based on national legislation transposing the Return Directive 2018/115 which establishes common standards and procedures for Member States for returning illegally staying TCNs. Having received the orders to leave and entry bans, all seven TCNs applied for residence permits for the purpose of family reunification with Belgian nationals who had never exercised their free movement rights. In four cases, applications were made for family reunification between a TCN parent and an EU citizen minor child. In two cases, the family reunification applications were made on the basis of a relationship between an adult TCN who is a child of an EU citizen parent. Finally, in one case the application was made for the purpose of family reunification between an adult TCN and an adult EU citizen cohabitee. According to Belgian administrative practice, if a TCN was issued with a valid and final ban on entry of at least three years, his/her subsequent application for family reunification with an EU citizen would not be examined at all and there would be no leeway to take into consideration the best interests of the child or the EU citizenship status of the family member (para. 47 of AG Sharpston’s Opinion).
In her Opinion of 26 October 2017, AG Sharpston held such a practice to be incompatible with article 20 TFEU, read in the light of articles 7 and 24 of the Charter, providing for the right to respect for family life and the child’s best interests (para. 58). AG Sharpston suggests that all seven cases fall within the scope of article 20 TFEU and that the competent authorities should “determine in each case at issue whether there is in fact a relationship of dependency between the EU citizen and the TCN family member”, while taking due regard of articles 7 and 24 of the Charter (para. 76). As regards the four cases involving the four TCN parents and their minor EU citizen children, AG Sharpston indicates that it is relevant which parent(s) has(ve) custody and whether the EU citizen child is legally, financially or emotionally dependent on the TCN parent (para. 77). She suggests that the same criterion of dependency should be used with regard to the relationship of the four EU citizen parents and their TCN adult children, as well as with regard to the relationship between the TCN and the EU citizen cohabitee (paras. 79 and 80). AG Sharpston provides an example of such dependency by illustrating a relationship “where an elderly or infirm parent relies on the presence of his TCN adult child and would be obliged to leave the EU if that child is expelled from the Member State concerned” (para. 79).
The judgement of the Grand Chamber of the Court of Justice, delivered on 8 May 2018, basically follows the AG’s Opinion. This ruling is important for two reasons. First – just like AG Sharpston – the Court holds incompatible with Art. 20 TFEU a national practice of not examining an application for residence for the purpose of family reunification solely on the ground that the TCN family member is the subject of an entry ban, without examining the relationship of dependency between the EU citizen and the TCN (para. 62).
Second, the Court obviously decided to seize the opportunity and try to consolidate its previous case-law on family reunification of EU citizens and TCNs in internal situations, starting from Zambrano onwards. Most notably – by relying on the criterion of dependency – the Court draws a clear line between situations involving minor and adult EU citizens. According to the Court, in cases where the EU citizen is an adult, dependency is conceivable “only in exceptional circumstances”, where separation of the EU citizen and the TCN family member is not possible (para. 76). Even though the Court does not give examples, this would probably apply to situations where an adult EU citizen – for reasons of a physical or psychological nature – could not live without the adult TCN family member. Additionally, the criterion of “exceptional circumstances” might also apply to situations where the TCN were a minor child, still dependent on the EU citizen parent (who is the primary carer or has joint custody), so that the TCN minor child’s removal from the EU would force the EU citizen parent to leave as well.
On the other hand, the Court sets a much lower threshold for the fulfilment of the criterion of dependency in relation to minor EU citizens, due to its indissoluble link with the principle of the child’s best interests. The Court repeats its statement contained in para. 72 of Chavez-Vilchez, where it ascertained that the relationship of dependency “must be based on consideration, in the best interest of the child, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties to each of his parents, and the risks which separation from the TCN parent might entail for that child’s equilibrium” (paras. 72 and 76 in K.A. and Others). Obviously, these considerations cover not only “exceptional circumstances” where separation “is not possible” (as in the case of adult EU citizens), but also where separation is possible, but not desirable, as it is contrary to the best interests of the child, due to the child’s dependency on the TCN parent. In this respect, the judgment in K.A. and Others – just like the one in Chavez-Vilchez – clarifies Dereci, where the Court does not consider the child’s best interests when discussing the reasons for keeping the family together. Thanks to K.A. and Others if keeping the family together – even though this is still not an acceptable reason by itself – is in the child’s best interests, then it would be a valid reason for a derived right of residence of a TCN family member based on article 20 TFEU.
To conclude, in K.A. and Others, the Court seems to draw a line as to how far it is willing to go in terms of extending the application of article 20 TFEU to family reunification in internal situations. The criterion of dependency, which entails the principle of the child’s best interests, enables its application to another group of internal situations where a minor EU citizen would, in practice, have to leave the EU territory in order to stay together with his/her parent on whom he/she is emotionally dependent. However, the criterion of dependency gets a different reading in the context of adult EU citizens, as it no longer matters what is in their best interests. What matters is whether or not they are capable of living separately from their TCN family members. However, the exceptional character of such situations renders their incidence extremely rare. The Court is tacitly saying: “In the child’s best interests we swear, but not a step further!”
*I am grateful to Tamara Ćapeta, Tamara Perišin and Nika Bačić Selanec for their valuable comments on the text.