Netherlands, Belgium, France, Spain, and the special case of the UK. The rights of minors to residence in their own country together with a non-EU parent.
Worldwide some countries actively (used to) promote immigration, others are more geared towards keeping foreigners out. Immigration is thus often associated with restrictive policies and laws. This can result in families being separated by borders. Those with means often find a way to overcome this and will comply with immigration requirements for family or partner based residence permits. However, some countries set high thresholds.
These policies and laws are not always humane and often ignore certain situations. For example:
- What if you are the partner of an EU national who abandons you and your EU child abroad while on holiday?
- What if you are divorced and the EU parent can’t legally stay in your country and your child needs or wants the other parent?
- What if you are loving (married) partners and want to continue your family life with your child together in the EU country?
- What if you are a single parent of an EU child and it is for the child better to grow up in the EU country than in your (problematic) country?
In these cases EU treaties and laws are often more protective of children and their rights to family life, parents, etc than national laws. Prior to some court verdicts it was not uncommon for immigration authorities to refuse entry and state almost rudely the EU child could live abroad in the parent’s country. Luckily courts did not always agree and recognised that small EU citizens (minors) were thus practically barred from living in their own country. This was not in line with the EU treaties countries signed up to. Mostly not in line with what is best for the EU child. The EU child thus punished for having a caring non-EU parent.
Zambrano 2011 ruling
The Court of Justice of the European Union (CJEU) issued a judgment in 2011 in the case of Ruiz Zambrano. It stated that Article 20 of the Treaty on the Functioning of the European Union (TFEU) must be interpreted as conferring a non-EU national/citizen parent of a “dependent” minor EU citizen a right of residence in the Member State in which the child is a national and resides. “Dependence” was thus a criteria which authorities would interpret sometimes restrictively.
Chavez-Vilchez 2017 ruling
The CJEU reaffirmed the Zambrano conclusions and acknowledged that the willingness and availability of the child’s EU parent to take on care duties are not sufficient to rule out the existence of dependency between the child and the non-EU parent. This judgment resulted in the Dutch government changing its policy. In 2018, this policy was amended and states that the non-EU parent of a Dutch child needs to demonstrate that they carry out primary care tasks. The government maintained that this amendment brings previous policy in line with the Chavez-Vilchez judgment. However, many argue that the Dutch policy applied in practice is not in conformity with the CJEU verdicts, see Restrictive Netherlands below.
Restrictive Netherlands
The Netherlands is one of them where general family immigration policies set a high threshold. A Dutch, or already resident foreigner, wanting to sponsor a family member requires a good and steady income, and the non-EU family member mostly needs to pass an integration/language test, etc etc before residency is granted. Emotional, financial or health dependency is often assessed as not serious enough to grant residency. With the Chavez-Vilchez ruling this changed mostly for those foreigners with a Dutch child. However, a so called Chavez visa application is still often refused if not prepared correctly. Many single parents can’t afford lawyers to help prepare, not even the cheaper (but better 😉) ones like us. However, some of our colleagues can provide Legal Aid in case of refusals and needing to go to court. And then there is some free information you can find online and in communities like the Facebook group “Chavez arrest – about family“. However, this community support is not always professional and may include some incorrect advise, maybe because your situation is slightly different or because of misinformation going around. So, when using free info resources please be careful and check, check, check! And please realise that any general information does not consider your specific situation/background. This is the difficulty with any general and published advise, it does not always address your situation specifically and can then lead to errors. Don’t forget that Immigration can sometimes use some statements or evidence against you. So be careful.
One of the secondary policies was that Chavez immigration status once granted was regarded as a temporary residency status, until the child becomes an adult. This would not allow the non-EU parent to naturalise Dutch. Upon another verdict this policy has now been changed. If you do have Chavez status it will allow you to naturalise Dutch, after 3+ years of cohabitation and marriage with the Dutch partner, or after the regular 5+ years (Chavez) residency in the country. We often have cases where the municipality incorrectly refuses to take in the naturalisation application and then a letter or intervention from us may be of assistance.
Other (EU) Countries
The rights of residence for non-EU parents in some EU countries were and are less restrictive. Belgium, Germany and France did already allow for non-EU parents to stay or join, see below. Spain and the former EU member United Kingdom are a bit more complex, see below. If you want to contribute further information about any other EU country, procedures, etc, then please get in touch.
Belgium
In Belgium, dependency between a child the non-EU parent is accepted and taken for granted. To get a residence permit the non-EU parent must evidence everyone’s identity, that he/she is the legal parent, that the child is still a minor, and that moving together or the non-EU parent joining the child.
Loi sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers, Article 40ter.
Please note that in Belgium residency applications are handled at the local municipality and there could be some local differences in procedures and knowledge.
Germany
A non-EU parent of a German child has a legal right to a residence permit, if they have custody rights and the right of care. Even if there is a German parent who cares for the child as well, the non-EU parent still has these rights. The family structure and the best interest of the German child is protected by law.
German Residence Act, Section 28
France
The French “Code de l’entrée et du séjour des étrangers et du droit d’asile” (Code on the Entry and Residence of Foreign Nationals and Rights of Asylum, CESEDA) gives the right for a residence permit to a non-EU parent of a French child. They do need to prove that they contribute to the maintenance and education of the child, in accordance with the conditions of Article 371-2 of the Civil Code.
(CESEDA Art L-313-11-6°)
If this is proven, the non-EU parent can’t be forced to leave the French territory.
(CESEDA Art L-511-4-6°)
Article 371-2 of the Civil Code requires a parent to contribute to the maintenance and education of the child within their ability and any limited resources. Even though non-EU parents are sometimes facing difficulties in order to get such residency permit or to get them renewed in practice, French case law shows that the courts apply these articles and that such documents are eventually granted in most of the cases.
Spain
According to instructions provided by the Ministry of Inclusion, Social Security and Migration, those who are not citizens of the European Union or of Spain, but who are the parent of a minor child who is a citizen of the European Union, may apply for a residence permit as a family member of a Union citizen by virtue of case C-200/02 (commonly known as Zhu and Chen). Like in the case of other residence permits for family members of a Union citizen, applicants must:
- Have, or take out health insurance for the applicant and any dependents during their stay in Spain
- Ensure that they have sufficient resources for both themselves and any dependents during their stay so as to avoid requiring social assistance from Spain
If the parent of the minor Union citizen does not meet the above requirements (due to the financial situation, for example), they may be eligible for a residence permit under Spanish national law by virtue of the doctrine of arraigo familiar (family roots), which is governed by Article 31.3 of the Organic Law 4/2000 of January 11. It is important to note, however, that in order for the applicant to qualify under national law, their minor child must be a Spanish national. The main requirements are somewhat different, stipulating that the parent of the minor Spanish national must:
- Have a clear criminal record check covering the last five (5) years, and
- Be in charge of the minor, or otherwise prove they are fulfilling their parental obligations towards the minor
United Kingdom (UK)
As a previous EU member, the UK is a bit of an odd one.
The ‘Zambrano Route’
The United Kingdom had been accepting applications for residence permits under the EU Settlement Scheme for parents of minor EU citizens (commonly known in the UK as the ‘Zambrano route’). However, this pathway has been closed as of the 9th of August 2023. Therefore, no new applications can be accepted after this date.
However, applications can still be processed in the following cases:
- You have pre-settled status, and intend to apply for settled status when eligible
- You have already made a ‘Zambrano route’ application on or before the 8th of August 2023, but your case has not yet been decided, or you are challenging/appealing a refusal of your previously submitted application.
If neither of these circumstances apply to you, national rules, and not EU rules, must be followed.
The pertinent rules are comprised in the national Immigration Rules, and are commonly referred to as ‘Appendix FM’ (FM = family members).