Famous Migration Law Clinic Cases

The District Court of Amsterdam has referred preliminary questions to the Court of Justice (regarding the right to residence of third-country national parents of Dutch children on the basis of Article 20 on the Treaty on the functioning of the European Union (also referred to in the Netherlands as the Chavez-Vilchez right of residence). The questions are formulated as follows:

1. Is it within the competence of the Member States to determine whether the right of residence on the basis of Article 20 TFEU is in itself of a temporary or a non-temporary nature, or should it be interpreted in conformity with Union law?
2. If interpretation must be in conformity with Union law, does a distinction [then] exist, when applying Directive 2003/109/EC, between the various dependents’ residence rights to which third-country nationals are entitled on the basis of Union law, including the dependent’s right of residence granted to a family member of a Union citizen on the basis of the Residence Directive and the right of residence on the basis of Article 20 TFEU?
3. Is the right of residence on the basis of Article 20 TFEU, which by its nature depends on the existence [of] a relationship of dependency between the third-country national and the Union citizen and is therefore finite, of a temporary nature?
4. If the right of residence on the basis of Article 20 TFEU is of a temporary nature, must Article 3(2)(e) of the Directive [then] be interpreted as precluding national legislation which only excludes residence permits issued under national law from acquiring long-term residence status within the meaning of the Directive?

The main focus of this expert opinion is the question whether the right of residence based on Article 20 TFEU is of a temporary nature, purely because the EU citizen child will at some point become an adult and the relationship of dependency is presumed to end at this point. More specifically it examines whether this right of residence is ‘temporary’ in the light of Article 3(2)(e) of the Long Term Residence Directive (Directive 2003/109/EC, LTRD).

The expert opinion first addresses the first preliminary question of whether or not it should be within the competence of the EU to define what constitutes ‘temporary grounds’ under the LTRD. It is contended that this question should be answered in the affirmative

Second, the expert opinion assesses whether the Chavez-Vilchez right of residence should be considered as temporary or non-temporary from the outset, at the moment this right is first granted to the TCN parent. In this context, it looks at the purpose of the LTRD. Moreover, it compares the Chavez-Vilchez right of residence with rights of residence, which are clearly considered of a temporary nature under the LTRD (au pairs, seasonal workers and service providers). The expert opinion also looks at the nature of other rights of residence, which are dependent on family ties (the right of residence of family members of EU citizens under the CD and the right to family reunification under the FRD). It concludes that that the Chavez-Vilchez residence right cannot be considered temporary at the moment they are granted.

Finally, the expert opinion argues that de facto long-term residence, is decisive for the legal qualification a right of residence as non-temporary. It is demonstrated that it is an important element of EU law that de facto long-term residence cannot indefinitely be qualified as temporary. De facto long-term residence generally also leads to more protection. It is argued that the duration of the residence and the integration of the TCN parent should make it possible to obtain a permanent residence permit under EU law. This is based on the rootedness of the individual and the objective of EU Law to genuinely integrate (TCN family members of) EU citizens and TCN sponsors in the society of the hosting Member State.

On 7 September 2022, the Court of Justice ruled that the Chavez-Vilchez right of residence cannot be considered ‘temporary’ in the meaning of Article 3 of the Long Term Residence Directive. The CJEU holds that the ordinary meaning of the words ‘solely on temporary grounds’ is that the residence was intended to be for a short period from the start. Here, the CJEU refers to the examples of temporary residence mentioned in Article 3 of the Directive: residence as au pair, seasonal worker, worker posted by a service provider or cross-border provider of services. The objective characteristic of these types of residence is that they are strictly limited in time and are indented to be residence for a short period. Therefore they make it impossible that the third-country national will settle on the territory of the Member State. The CJEU rules that the Chavez-Vilchez right of residence lacks that objective characteristic. The CJEU stresses that the relationship of dependency between parent and child is crucial where it concerns the Chavez-Vilchez right of residence. Even though this relation of dependency generally disappears over time, it is not short-lived. Therefore, long-term residency in the Union is not excluded. Moreover, the CJEU refers to the main purpose of the Long Term Residence Directive: the integration of third-country nationals in the Union. In this context, it notes that the Chavez-Vilchez right of residence usually lasts a considerable period of time and grants third-country nationals the right to work, which reinforces their ties with the Member State. Finally, it considers that third-country nationals with a Chavez-Vilchez right of residence must fulfill the requirements for long-term residency, such as the income requirements and (if the Member State has implemented this) integration requirements.

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ECRE/ELENA Legal Note on Ageing Out and Family ReunificationIn January 2017 the Migration Law Clinic finalised an expert opinion in the context of a preliminary question of the district court of Amsterdam of 26 October 2016. The question concerns the right to family reunification of persons who were an unaccompanied minor at the moment of their asylum application but adults at the moment their asylum status was granted. The question reads as follows:

In matters relating to family reunification for refugees, must the term ‘unaccompanied minor’, within the meaning of Article 2(f) of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, also cover a third-country national or stateless person below the age of 18 who arrives on the territory of a Member State unaccompanied by an adult responsible by law or custom and who:

• applies for asylum,
• during the asylum procedure, attains the age of 18 on the territory of the Member State,
•  is granted asylum with retroactive effect to the date of the application, and
• subsequently applies for family reunification?

The expert opinion addresses this question and focuses on the purpose of the Family Reunification Directive, the declaratory nature of the refugee status and principles of EU law, including the principle of effectiveness.

The case (Case C-550/16) is currently pending before the Court of Justice (CJEU). The CJEU held an oral hearing on 14 September 2017. The CJEU has asked the Dutch and Polish Government and the European Commission to respond to the expert opinion of the Migration Law Clinic. On 26 October 2017 Advocate General Bot gave his opinion about the case. On 12 April 2018 the CJEU issued its judgment. The CJEU followed the argumentation in the Migration Law Clinic’s expert opinion. See our news post for more information on the judgment. See also the ECRE/ELENA Legal Note on Ageing Out and Family Reunification, which refers to the expert opinion of the Migration Law Clinic.

Expert Opinion Unaccompanied Minors final version