CJEU: Third-country parent of dependent EU citizen child, who has never lived in the EU, has a right of residence provided that the child resides with him in the Member State of his nationality

On the 22^nd of June 2023, the CJEU delivered its judgment C‑459/20. The case concerned X who legally resided in the Netherlands where she was married to A, a Dutch national, with whom she had a child with Dutch nationality. The child was born in Thailand where he has been raised by his maternal grandmother as X, the mother, returned to the Netherlands after his birth. The child always lived in Thailand and never travelled to the Netherlands or to any other Member State (MS). The Netherlands revoked X’s residence permit as X and A separated and so X was deported to Bangkok. The father, A, has no emotional bond with the child and assumed no responsibility towards him. In the course of the proceedings, the referring court submitted preliminary questions.

The CJEU first ruled that Article 20 of the Treaty on the Functioning of the European Union (TFEU) must be interpreted as meaning that a situation in which a minor child, a Union citizen, who has the nationality of a MS and who, since birth, has lived outside the territory of that MS and has never resided in the territory of the EU, does not preclude one of their parents, who is a  third country national (TCN), upon whom that child is dependent, from benefiting from the derived right of residence under article 20 TFEU, provided that the child will enter and reside in the territory of that MS of which he has the nationality together with that parent. The Court then held that the MS responsible for this application on the derived right of residence may not reject that application on the ground that moving to that MS is not in the real or plausible interests of that child. Furthermore, the CJEU ruled that when assessing whether the child is dependent on their parent, the MS has to take into account all the relevant circumstances, without it being regarded as decisive either that the TCN parent has not always assumed day-to-day care of that child but now has sole care of that child, or that the other parent, who is a Union citizen, could assume the actual day-to-day care of that child.