CJEU, 22 June 2023, Staatssecretaris van Justitie en Veiligheid (Thai mother of a Dutch minor child), C-459/20, EU:C:2023:499

Citizenship of the Union – Article 20 TFEU – Best interests of the child – Minor child who is an EU citizen – Derived right of residence in a Member State – Child outside the territory of the European Union.

In Staatssecretaris van Justitie en Veiligheid (Thai mother of a Dutch minor child), the Court of Justice of the European Union interprets Article 20 TFEU in a case where the mother of an EU citizen, who is a minor child born and living in a third country, applies for a derived right of residence in the Member State of which the child is a national. This case note focuses on the Court’s fluctuating approach to the best interests of the child and inconsistent use of references to Article 24 of the Charter of Fundamental Rights. This analysis compares the Advocate General’s opinion and the Court’s decision and points out the differences in their reasoning about the best interests of the child.

Eleonora FRASCA

A. Introduction

A new judgment from the Court of Justice of the European Union (CJEU) adds to the case law on the interpretation of Article 20 TFEU in purely internal situations when the enjoyment of the substance of the rights attaching to the status of Union citizens is at stake.[1] This case note of the ruling of 22 June 2023 Staatssecretaris van Justitie en Veiligheid (Thai mother of a Dutch minor child) highlights the different approaches to the interpretation of Article 20 TFEU taken by the CJEU and by Advocate General Richard de la Tour in his opinion, in particular with regard to the best interests of the child enshrined in Article 24 of the EU Charter of Fundamental Rights.

1. Factual Situation

The factual situation in case C-459/20 is new to the Court. Can a third country national, mother of a static EU citizen, who is a minor child and has never set foot in the territory of the European Union, be entitled to a derived right of residence in the Member State of which the child is a national based on Article 20 TFEU? The lifelong absence of the EU citizen from the territory of the Union is the novel element of this case. The Dutch child was born and raised by his grandmother in Thailand, his mother’s country of origin, who lives in the Netherlands. After divorcing her partner (a Dutch national, father of the child), she lost her residence permit in the Netherlands. She applies for a new permit on humanitarian grounds, which was refused and, later, a Dutch national applied for family reunification with the woman, but that application was also refused. She was subsequently deported to Thailand. Appealing against the decision of the Dutch authorities denying her a residence permit, she argued that, by denying her a right of residence, her child – who does not live in the Netherlands – “is deprived of the possibility of residing in the European Union and that, consequently, that decision undermines the effectiveness of the rights that he derives from his status as a Union citizen” (para 12).

According to the referring court, it is unclear if the principles allowing for a derived right of residence to a third country national under Article 20 TFEU apply in this case. The mother claims that a relationship of dependency, both legal and financial, exists between her and the child, that a judgment of a Thai court has granted her the sole responsibility for the child’s care, that the child has no relationship with his father and that the grandmother (formerly the primary caregiver of the child) is no longer able to take care of him. On the contrary, the Dutch authorities claim that the woman is taking advantage of the EU citizenship of her child to obtain a residence permit in the Netherlands and that it is not in the child’s best interests to move to the European Union.

2. Preliminary Questions and Decision

The Dutch Court referred three questions to the CJEU. The first concerns the condition upon which the mother of a dependent child, who is an EU citizen but has never set foot in the territory of the European Union, can derive a right of residence based on Article 20 TFEU. The Court’s answer to this question is a recap of previous case law, with one important clarification. In previous cases, the child/EU citizens were on the territory of the European Union, although they did not exercise free movement rights. The Court consistently ruled that Article 20 TFEU precludes Member States from denying a derived right of residence to the parent upon whom the child is dependent, otherwise, the child would be compelled to leave the territory of the European Union together with their parent. In a recent case (C-528/21), the Court ruled that Article 20 TFEU also precludes Member States from adopting an entry ban into the territory of the Union in respect of a parent upon whom the child is dependent (for a comment of this case, see A. Pahladsingh).

In the case at stake (C-459/20), the child is already (and has always been) outside the territory of the European Union. There is no question of the child being compelled to leave the Union. The Court considers that Article 20 TFEU precludes a national measure that denies a third country national (the mother upon whom the child is dependent) a derived right of residence provided that “it is established that that child will enter and reside in the territory of that Member State of which he or she has the nationality together with that parent” (para 38 and operative part). The CJEU adds that it is the task of the referring court to carry out, other than the assessment of the existence of a child-mother relationship of dependency, a factual evaluation of the odds that the child will move to the Member State of his nationality. I will come back to this point in the discussion section.

The second question, slightly reformulated by the Court, concerns the possible proof of an interest, on the child’s side, in moving to the Member State of his nationality and, therefore, to the European Union. The Dutch Court uses the words “to demonstrate or declare an interest in exercising the rights conferred on them by citizenship of the Union”, pointing out that a minor child cannot assert their rights independently (question 2a). The CJEU argues that a Member State may not reject an application for a residence permit from a third-country national parent “on the ground that moving to that Member State is not in the real or plausible interests of that child” (para 45 and operative part, emphasis added).

The Court gives three arguments in support of this interpretation. First, the right of an EU citizen to move and reside freely within the territory of the Member States “flows directly from the status of Union citizen without its exercise being subject to proof of any interest whatsoever in order to rely on its benefits” (para 40). Second, the capacity of a Member State national to be the holder of free movement rights guaranteed by EU primary and secondary law “cannot be made conditional upon the attainment by the person concerned of the age prescribed for the acquisition of legal capacity to exercise those rights personally” (para 42, citing Zhu and Chen). Third – and this is the most interesting point – an assessment of the child’s best interests cannot be made to refuse a derived right of residence to the parent of an EU minor citizen, upon whom the child is dependent. The best interests of the child can only be taken into account to assess “whether there is a relationship of dependency” between the two or “the consequences of a derogation from the derived right of residence based on considerations of public security or public order” (para 43).

In other words, the best interests of the child “could be relied on not in order to reject an application for a residence permit but, on the contrary, [but only] to preclude the adoption of a decision that compelled that child to leave the territory of the European Union” (para 43). The Court establishes that, when deciding on an application for residence according to Article 20 TFEU, the national authorities cannot determine whether the international move of that child to the Member State of nationality takes place in his best interests “without improperly substituting themselves for those with parental responsibility for the child concerned and without infringing the capacity of that child to exercise rights that he or she derives from the status conferred on him or her by Article 20 TFEU” (para 44). The consequence of this interpretation is that if the national authorities find that there is a relationship of dependency between the mother and the child, the child would be compelled to leave the country where he has always lived (Thailand) and move to the Netherlands, a country where he has never been and has no connection with. This is the point where the Advocate General’s opinion and the Court’s ruling differ the most, as it will be explained in the discussion section.

The third question concerns the criteria for assessing whether there exists a child-parent relationship of dependency between and, in particular, which factors are decisive in this assessment for the purpose of the parent deriving a right of residence from the EU citizenship of their child. Ever since the Chavez-Vilchez case, the notion of “relationship of dependency” has been at the core of the Court’s analysis (see, inter alia, case C-82/16, joined cases C-451 and 532/19 and case C-112/20). In this case, the CJEU states that the fact that the third country national parent has not always assumed day-to-day care of that child but is now the sole caregiver of the child or the fact that the other parent, who is a Union citizen, could assume the actual day-to-day care of the child are “relative circumstances” but not “decisive” for establishing if a relationship of dependency exists (para 61 and operative part). This analysis will not focus on this point.[2] Instead, it will focus on the Court’s fluctuating approach to the best interests of the child and inconsistent use of references to Article 24 of the Charter, despite the Advocate General’s clear opinion in this regard. I will compare the opinion of the Advocate General to the Court’s decision and point out the differences in their reasoning about the best interests of the child.

B. Discussion

Neither the referring court in its preliminary questions nor the CJEU in its ruling make an explicit reference to Article 24 of the EU Charter of Fundamental Rights on the best interests of the child. However, the child’s “other”, “best” or “real and plausible” interests are mentioned several times in the text. On the contrary, in his opinion, Advocate General Richard de la Tour interpreted Article 20 TFEU in light of Article 24 of the Charter. The best interests of the child are included as a keyword in his opinion, but later disappeared in the ruling’s keywords. This is the second time since his appointment at the Court in 2020 that the Advocate General has put Article 24 of the Charter at the core of his interpretation of EU law.

The first was his opinion in case C-720/20, Bundesrepublik Deutschland (Child of refugees, born outside the host state), in which he proposed a sensible interpretation of the Dublin regulation (for a note on this case, see E. Néraudau in a previous edition of the Cahiers de l’EDEM). In that case, Advocate General Richard de la Tour argued that the best interests of the child might require the Member States to derogate from the rules which aim at preventing the so-called secondary movements of beneficiaries of international protection. While, in substance, the results of the interpretation of the Court and that of Advocate General Richard de la Tour converge, the Court did not follow the Advocate General’s reasoning based on the best interests of the child. It preferred a more technical interpretation of the Dublin regulation without any reference to the Charter.[3]

Something similar happens in the case under analysis (C-459/20). While both the Court and the Advocate General make clear that the mother/third country national of the child/EU citizen can only claim a derived right of residence if the child “will enter and reside in the territory of that Member State of which he or she has the nationality together with that parent” (para 38), the Advocate General draws a distinction based on the facts of the case and the nature of the mother’s application under Article 20 TFEU, distinguishing from what he calls “a ‘sole’ application” and “a ‘joint’ application” (opinion, para 4). He points out that the first preliminary question refers to the case where the woman is applying for a residence permit alone, with no connection with the entry and residence of her child (para 21). In contrast, in the second and third questions, the referring Court takes for granted that the child will also move to the territory of the European Union together with his mother by exercising his free movement rights.

Like the Dutch authorities, the Advocate General expresses his concerns about the intention of the mother to settle with the child in the Netherlands, suspecting an “abusive manoeuvre” (para 71), “primarily motivated by the wish of the mother […] to return to the Netherlands and thus to maintain a right of residence in that Member State” (para 42), posing the risk of an “abuse of the derived right of residence granted under Article 20 TFEU”, with the child “being considered as the means for the third-country national to live in the territory of the European Union” (para 52, emphasis added).

The Advocate General’s concerns are based on the fact that, before her application based on Article 20 TFEU, the Thai woman applied twice for a residence permit in the Netherlands, independent from her child: the Dutch authorities first refused her application for a residence permit on humanitarian grounds and then an application in the context of family reunification lodged by a Dutch national to her benefit. The Advocate General also advises caution by stating that “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” (para 56).

As reported above, the Court supported that the national authority cannot verify whether the international move of the child from the country of his habitual residence[4] to the Member State of nationality is being made in their own interests. The Advocate General argued the opposite. The national authorities seized of an application for a derived right of residence under Article 20 TFEU must verify whether that international move is in the best interests of the child. Proposing a reading of Article 20 TFEU in light of Article 24 of the Charter, Advocate General Richard de la Tour states 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” (para 43, emphasis added).

He adds that

“[i]n the examination of an application for the grant of a derived right of residence […], the assessment must be carried out from the point of view of the child and not from the point of view of the third-country national parent” (para 44, emphasis added).

He then cites, first, Article 24(1) of the Charter, which “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” (para 45), then Article 24(2) which “requires the competent national authority to take the child’s best interests into consideration” (para 46) and, finally, Article 24(3) of the Charter on the right to maintain on a regular basis a personal relationship and direct contact with both parents (para 51), making this a comprehensive reference to all three paragraphs of Article 24 of the Charter.

The Advocate General later identifies three guiding criteria for the national authorities competent for the application for a residence permit based on Article 20 TFEU to determine whether the international move of the child is in his best interests, “in accordance with Article 24 of the Charter” (para 60 and conclusion). According to the Advocate General, to carry out such an assessment in light of Article 24 of the Charter, the national authorities must take into account:

• the social and family environment of the child, meaning any negative consequence of the international move on the child’s well-being, his material situation and his emotional, family and social relationships (para 49);
• the existence of a credible life plan in the Member State, meaning the proof “in objective or tangible factors […] 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” (para 57);
• the views of the child, meaning 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” (para 60), and the views of the person who has sole parental responsibility, who can present their observations on the reasons for that move.[5]

Advocate General Richard de la Tour provides the Member States’ authorities and courts, competent on the application for a derived right of residence, with guiding criteria on the best interests of the child to ensure that the child’s EU citizenship is not used against his best interests. In doing so, he truly engages with the content of Article 24 of the Charter. While I have only presented a summary of the Advocate General’s arguments, he discusses these criteria more in detail by giving concrete examples linked to the factual situation of this “Thai woman, mother of a Dutch child”. He points out that the national authorities must undertake an “overall assessment of the situation and balancing of all the relevant factors, with the aim of […] safeguarding his or her interests” (para 58, emphasis added), as it is their task “ruling on any circumstances surrounding the application for a derived right of residence brought by the mother of that child” (para 42).

In this case, going along the path marked by the Chavez-Vilchez ruling, the CJEU further sharpens its interpretation of the concept of “the existence of a relationship of dependency” (in its answer to the third preliminary question, which I have not discussed), but it once again refuses to give a content interpretation to the best interests of the child when the law does not require that, even at a time when preliminary questions coming from national courts become more explicit and articulated. In this case, the Court excludes altogether an assessment of the best interests of the child. It does so in the name of EU citizenship upon which limitations cannot be placed, indirectly answering to one of the sub-questions of the referring court:

“Are those rights absolute, in the sense that no obstacles may be placed in their way or that the Member State of which the (minor) Union citizen is a national might even have a positive obligation to enable that citizen to exercise those rights?”

As already reported, the Court clearly states that the national authorities cannot determine whether the move of that child to the Member State of nationality is in his best interests “without improperly substituting themselves for those with parental responsibility for the child concerned and without infringing the capacity of that child to exercise rights that he or she derives from the status conferred on him or her by Article 20 TFEU” (para 44).

By way of conclusion

As mentioned before, this is not the first time that the Court has not followed the opinion of Advocate General Richard de la Tour in his interpretation of EU law in light of Article 24 of the Charter. In commenting on the other case C-720/20 cited above, Bundesrepublik Deutschland (Child of refugees, born outside the host state), Jean-Yves Carlier and I have argued that the Court preferred leaning its reasoning on a technical interpretation of the Dublin regulation, rather than on the principle of the best interests of the child. We argued that the Court seems to consider that, rather than being a general or fundamental principle that should be applied per se, the best interests of the child is a safeguard principle which, if necessary, complements the texts in order to ensure the genuine enjoyment of the substance of the rights of the child when these cannot be sufficiently protected by technical rules (we developed this argument more in detail in this article).

While in that case (C-720/20), the results of the interpretation of the Court and that of Advocate General Richard de la Tour converge, in the case commented here (C-459/20), there is a substantial disagreement between the Court and the Advocate General on the necessity of an assessment of the best interests of the child at the stage of an application for a derived right of residence based on Article 20 TFEU.

In this case (C-459/20), the object of the interpretation of the Court’s preliminary ruling is not the subparagraph of an article enshrined in a very cumbersome regulation (such as the Dublin regulation in the other case). Instead, the Court is asked to interpret the varying ramifications of its own innovative case law on Article 20 TFEU. That same case law can create paradoxical situations, like that of the Thai mother who, after having unsuccessfully secured a right of residence in a Member State, tries to “take” one from her child’s EU citizenship. Despite his Dutch nationality, the child has never been to the European Union, does not speak Dutch or English and now risks being uprooted from the world he has known since his birth only because his mother, with whom he did not share a family life for many years, wishes so. However, the Court considers that an EU citizen’s right to enter and reside in the Member State of his nationality cannot be limited or conditioned to an assessment of his best interests. That would amount to an interference with the child’s private and family life.

The Ruiz Zambrano case law was not made to protect EU citizens, such as the Dutch child living in Thailand, who are already outside the territory of the Union, but rather those who – despite being on the territory of the Union, residing in their Member State of nationality – escaped the scope of EU secondary law, as they had never exercised their rights of free movement. Advocate General Richard de la Tour has the undoubted merit of putting migrant and sedentary children at the centre of his interpretation of EU law, underlining how important but also hard it is to assess their best interests where the circumstances of the case are complex and involve an international move (in this sense, see L. Lonardo for child custody cases in the CJEU’s case law). Notwithstanding this complexity, the Court is not suspicious of the true intentions of the mother but of those of the Member States’ authorities, who cannot deny an EU citizen the right to enter and reside in his Member State of nationality and on the territory of the European Union.

C. Suggested Reading

To read the case: CJEU, 22 June 2023, Staatssecretaris van Justitie en Veiligheid (Thai mother of a Dutch minor child), C-459/20, EU:C:2023:499.

Case law on Article 20 TFEU:

• Opinion of Advocate General Richard de la Tour, Staatssecretaris van Justitie en Veiligheid (Thai mother of a Dutch minor child), delivered on 16 June 2022, C-459/20, EU:C:2022:475;
• CJEU (GC), 8 May 2018, K.A. and others (Family reunification in Belgium), C-82/16, EU:C:2018:308;
• CJEU (GC), 10 May 2017, Chavez-Vilchez and Others, C-133/15, EU:C:2017:354;
• CJEU, 6 December 2012, O and S, C-356/11 and C-357/11, EU:C:2012:776;
• CJEU (GC), 15 November 2001, Dereci and Others, C-256/11, EU:C:2011:734;
• CJEU (GC), 8 March 2011, Ruiz Zambrano, C-34/09, EU:C:2011:124.

Case law on Article 24 of the Charter:

• CJEU (GC), 1 August 2022, Bundesrepublik Deutschland (Child of refugees born outside the host State), C-720/20, EU:C:2022:603;
• Opinion of Advocate General Richard de la Tour, Bundesrepublik Deutschland (Child of refugees born outside the host State), delivered on 24 March 2022, C-720/20, EU:C:2022:219.

Doctrine:

• Carlier, J.-Y. and Frasca, E., “Droit européen des migrations”, Journal de droit européen, n° 3, 2023, pp. 147-169;
• Frasca, E. and Carlier, J.-Y., “The best interests of the child in the ECJ asylum and migration case law: Towards a safeguard principle for the genuine enjoyment of the substance of children’s rights?”, Common Market Law Review, vol. 60, n° 2, 2023, pp. 345-390;
• Hyltén-Cavallius, K., “The Unfolding Destiny of Union Citizenship: From a Fundamental Status to a Status of Genuine Substance”, European Journal of Migration and Law, vol. 24, n° 3, 2022, pp. 430-461;
• Lonardo, L., “The best interests of the child in the case law of the Court of Justice of the European Union”, Maastricht Journal of European and Comparative Law, n° 29, 2022, pp. 596–614;
• Néraudau, E., “La demande d’asile introduite par un mineur dans son État de naissance, qui n’est pas l’État qui a accordé le statut de réfugié à ses parents antérieurement, devra être examinée et ne pourra pas être rejetée pour ‘irrecevabilité’”, Cahiers de l’EDEM, September 2022 ;
• European Union Agency for Fundamental Rights and Council of Europe, Handbook on European law relating to the rights of the child (2022 edition).

To cite this contribution: E. Frasca, “No assessment of the best interests of the child when the EU citizen, who is a minor child, exercises the right to enter and reside in the EU Member State of their nationality”, Cahiers de l’EDEM, August 2023.