The European court determined today that the parent of a Dutch child can claim legal residency in the Netherlands. The Court answered questions referred by the Dutch Central Appeals Tribunal. This decision clarifies the rights of parents who care for a Dutch child, but come from a third (non-European) country and do not have a residence permit Earlier, in the so-called Zambrano decision, the European Court determined that a child with nationality of a member state could not be effectively forced to leave the EU because the non-EU parents did not have the legal right to reside in that member state and to live and work in the EU. In that case, the parents would also have residence rights in that member state.
The Netherlands, however, had a very restrictive interpretation: only in the case where the child has no other (Dutch) parent or if that Dutch parent is not in the position to care for the child, for example, if the parent has died or is in prison, could the non-Dutch parent get a residence permit. In other cases, it was considered that the Dutch parent could provide for the child, even if this Dutch parent had never and/or did not want to do so. This new decision by the Court established a broader interpretation. Today’s decision called for an investigation to determine whether the Dutch parent is capable of, or wants to be, the sole daily caregiver for the child. It must be further investigated whether the Dutch child is dependent on the non-Dutch parent and if the parent were not entitled to residency, would the child follow the parent and leave the EU. Also, even if the Dutch parent is willing and able to be the sole caregiver for the child, all factors must be weighed in determining the balance of interest best for the child in that situation. Read the press release from the Court here.
If you need more information about the application of this decision to your specific situation, please contact Scheers Advocatuur.