The European Court of Justice (“ECJ”) has ruled that non-EEA parents of an EEA child may have an almost de facto right of residence if removal of the non-EEA parent would “upset the equilibrium” of the EEA child. The fact that the other parent, an EU citizen, could assume sole responsibility or shared responsibility for the primary day- to-day care of the child is a relevant factor, but is not in itself sufficient grounds for the refusal of an EEA Residence Card as was previously the case. The best interests of the child and the impact upon them of removal of a parent is now the paramount consideration.
The Home Office must be satisfied that there is such a relationship of dependency between the child and the non-EEA national parent that a decision to refuse a right of residence to that parent would compel the child to leave the EU, in which case an EEA Residence Card should be issued.
In the case of Chevez, if the mother was compelled to leave the Netherlands, that would deprive her children of the genuine enjoyment of the substance of their rights as EU nationals by compelling them to leave the territory of the EU.
When assessing that risk, it is important to determine which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent.
As part of that assessment, the Home Office must take account of the right to respect for family life and the best interests of the child. The fact that the other parent, an EU citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the EU if a right of residence were refused to that third-country national.
In reaching such a conclusion account must be taken, in the best interests of the child, of all the specific circumstances, including:
- the age of the child;
- the child’s physical and emotional development;
- the extent of his or her emotional ties both to the EEA citizen parent and to the third-country national parent; and
- the risks which separation from the latter might entail for that child’s equilibrium.
The burden of proof is on the non-EEA national parent to provide evidence that a decision to refuse him or her a right of residence would deprive the child of the genuine enjoyment of the substance of the rights attached to status as an EU citizen by obliging the child to leave the territory of the EU.
This is potentially a ground-breaking decision. Most parents that continue to play an active role in the upbringing of their child could conceivably benefit. The fact that the other EEA national parent is able and willing to “pick up the slack” and assume day-to-day responsibility is an insufficient basis for removal of the non-EEA parent.
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