21st Mar 2018

Parents of EU children win right to stay

  • (Photo: London Scout)

Parents of children with EU citizenship can receive EU residency if they are their main carers, the European Court of Justice (ECJ) ruled on Wednesday (10 May).

The ruling goes against policy in member states such as the Netherlands and the UK.

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The court ruled on a case brought by the Netherlands, in which a Venezuelan woman - whose visa had expired - sought benefits for her Dutch child. They were denied to her, as she lacked the residency requirement.

Her case was backed by seven other mothers of Dutch children, none of whom had a legal right to stay in the Netherlands.

Judges said national courts must focus on the welfare of minors.

A primary carer who was forced to leave the EU would likely bring underage children with her or him - which would deprive the children of enjoying their EU rights, they said.

The fact that the other parent was able and willing to assume responsibility for the child was not a sufficient ground for denying the main carer a right to stay in the bloc, the court said.

Instead, authorities should take into account the age of the child, the extent of emotional ties to both parents, and the risk of what separation from the main parent might entail "for the child’s equilibrium".

Wednesday's case clarifies a previous EU court ruling, which also said that non-EU nationals had a right to stay in the bloc if they were main carers of children with EU nationality.

However, countries took a narrow interpretation of the case law and only applied it in extreme circumstances - for instance, if the other parent was in jail.

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