Opinion of the Advocate General — ECLI:EU:C:2022:475
Date: 2022-06-16
Language of the case: Dutch
Subject matter: Citizenship of the Union
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary  C-459/20 – 1 
Case C-459/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
15 September 2020 
Referring court:  
Rechtbank Den Haag, zittingsplaats Utrecht (Netherlands) 
Date of the decision to refer:  
10 September 2020 
Applicant:  
X 
Defendant:  
Staatssecretaris van Justitie en Veiligheid 
  
Subject of the action in the main proceedings 
The subject of the action in the main proceedings is the decision to refuse the 
applicant’s application for a residence permit lodged after her divorce from her 
Dutch husband. During her marriage, she had a child who is a Dutch national but 
who is being raised in Thailand and has never lived in the Netherlands. The issue 
is whether she can derive a right of residence from the Dutch nationality of her 
child, because that child, without a right of residence for his mother, would be 
deprived of the rights he enjoys as a citizen of the European Union.  
Subject and legal basis of the request for a preliminary ruling 
That application under Article 267 TFEU concerns the question whether 
Article 20 TFEU is to be interpreted as precluding the refusal of an application for 
a residence permit from a third-country national where that third-country national 
has a dependent minor child who is a national of a Member State of the Union but 
has never resided in the Union, since such a refusal would have the effect of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-459/20 
 
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preventing the child from exercising his rights of residence as a citizen of the 
Union. 
Questions referred for a preliminary ruling 
I. 
Is Article 20 TFEU to be interpreted as precluding a Member State from denying a 
third-country national, who has a dependent minor child, a Union citizen, where 
that minor is in an actual relationship of dependency in respect of that third-
country national, a right of residence in the Member State of which the minor 
Union citizen is a national, where the minor Union citizen is located outside the 
territory of that Member State or of the Union and/or has never been in the 
territory of the Union, with the result that the minor Union citizen is effectively 
denied access to the territory of the Union?  
II. 
(a) Should (minor) Union citizens declare or demonstrate an interest in 
exercising the rights conferred on them by citizenship of the Union?  
(b) In that regard, could a relevant factor be that, as a rule, minor Union citizens 
cannot independently assert their rights and have no say over their place of 
residence, but are dependent on their parent(s) in that respect, and that this could 
involve a claim being made on behalf of a minor Union citizen for the right to 
exercise his rights as a Union citizen, whereas that might possibly be contrary to 
their other interests as referred to, for example, in the Chavez-Vilchez judgment?  
(c) Are those rights absolute, in the sense that no obstacles may be placed in 
their way or that the Member State of which the (minor) Union citizen is a 
national might even have a positive obligation to enable that citizen to exercise 
those rights?  
III. 
(a) In assessing whether there is a relationship of dependency as referred to in I. 
above, is the decisive factor whether or not the third-country national parent, prior 
to the application or prior to the decision refusing a right of residence, or prior to 
the time when a (national) court has to make a decision in legal proceedings 
brought because of that refusal, was responsible for the day-to-day care of the 
minor Union citizen, and whether there are others who were responsible for such 
care in the past and/or can (continue to) be responsible for it?  
(b) In that connection, can the minor Union citizen, in order to be able to 
exercise his Union rights effectively, be required to settle on Union territory with 
his other parent, who is a citizen of the Union, who may no longer have parental 
responsibility for the minor?  
STAATSSECRETARIS VAN JUSTITIE EN VEILIGHEID 
 
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(c) If so, does it make a difference whether or not that parent has or had parental 
responsibility and/or whether the minor is or was legally, financially or 
emotionally dependent on that parent and whether or not that parent is willing to 
take on those responsibilities and/or the care of the minor?  
(d) If it were to be established that the third-country national parent has sole 
parental responsibility for the minor Union citizen, does that then mean that less 
weight should be attached to the question of the legal, financial and/or emotional 
dependence?  
The provisions of Union law cited 
Article 20 TFEU 
The provisions of national law cited 
None 
Brief summary of the facts and the procedure in the main proceedings 
1 The applicant has Thai nationality and was married to a Dutch national. During 
her marriage, a child was born who has Dutch nationality but who was born in 
Thailand. The applicant returned to the Netherlands after the birth, but the child 
was raised in Thailand by the applicant’s mother and has never been to the 
Netherlands.  
2 Following her divorce, the applicant’s right of residence in the Netherlands was 
withdrawn in 2017. On 6 May 2019, the defendant notified the applicant that she 
was to be deported to Bangkok. Then, on 7 May 2019, she applied for a residence 
permit to reside with [B]. That application was refused by decision of 8 May 
2019, after which the applicant was deported. By decision of 2 July 2019, the 
defendant rejected the objection lodged by the applicant. As a result, the applicant 
brought the present action before the rechtbank Den Haag (District Court, The 
Hague).  
3 Initially, both parents had joint parental responsibility for the child by operation of 
law. On 5 February 2020, the court in Surin, Thailand, granted sole parental 
responsibility to the applicant. However, as the rechtbank Den Haag does not have 
a certified copy of that judgment, it is unclear whether the applicant, from a legal 
point of view, is acting as the sole parent.  
Main submissions of the parties to the main proceedings  
4 According to the applicant, she has a right to reside in the Netherlands because her 
child has Dutch nationality and she can derive a right of residence from his Union 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-459/20 
 
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citizenship. She points out that she has parental responsibility for the child, that 
she has always had an affectionate relationship with him and he has always been 
legally and financially dependent on her. Initially, she maintained contact with 
him from the Netherlands by digital means, while her mother took care of the 
child in Thailand. Since her return to Thailand, she has personally taken care of 
the child. Her mother is no longer able to do so for medical reasons. Previously, 
the child had contact with his father once a year at most, but because he does not 
speak Dutch or English, he could not communicate with his father. Since 2017, 
there has no longer been any contact with the father. The child is thus entirely 
dependent on her. Therefore, by denying her a right of residence in the 
Netherlands, the child is also being deprived of the possibility of exercising his 
rights as a Union citizen.  
5 The defendant submits that the criteria laid down by the Court of Justice of the 
European Union (‘the Court of Justice’) in the judgment in Chavez-Vilchez and 
Others 1 for assessing whether a child is deprived of his or her rights as a Union 
citizen if he or she is compelled to leave the territory of the Union (see 
paragraph 9 below) are not applicable in the present case. The refusal of the 
applicant’s residence application does not have the effect of compelling the child 
to leave the territory of the Union, since the child has been resident in Thailand 
since birth. Furthermore, according to the defendant, it is unclear whether the 
child is so dependent on his mother (from whom he has been separated for almost 
his entire life) that her forced residence outside the Union compels the child to 
reside outside the Union as well. Moreover, there is a lack of clarity about the 
relationship with the father in the Netherlands. Nor has it been demonstrated that 
it is in the interests of the child to allow the applicant to reside in the Netherlands.  
Brief summary of the reasons for the referral 
6 The referring court observes that the question that is particularly relevant to the 
present case is whether the judgments of the Court of Justice in Ruiz Zambrano, 2 
Dereci, 3 O. and Others 4 and Chavez-Vilchez and Others are also applicable if a 
minor child who is a Union citizen is located outside the territory of the Union or 
may never even have been there.  
7 The referring court deduces from the Dereci judgment that nationals of a Member 
State of the European Union may, as such, rely as against that Member State on 
European Union law, including Article 20 TFEU. In Ruiz Zambrano, the Court of 
Justice held that that article is to be interpreted as meaning ‘that it precludes a 
 
1 Judgment of 10 May 2017, Chavez-Vilchez and Others, C-133/15, EU:C:2017:354. 
2 Judgment of 8 March 2011, Ruiz Zambrano, C-34/09, EU:C:2011:124. 
3 Judgment of 15 November 2011, Dereci and Others, C-256/11, EU:C:2011:734. 
4 Judgment of 6 December 2012, O. and Others, C-356/11 and C-357/11, EU:C:2012:776. 
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Member State from refusing a third country national upon whom his minor 
children, who are European Union citizens, are dependent, a right of residence in 
the Member State of residence and nationality of those children, [in so far as such 
a decision] deprive[s] those children of the genuine enjoyment of the substance of 
the rights attaching to the status of European Union citizen’. Of relevance in that 
regard is whether such a decision would result in the children being compelled to 
leave the territory of the Union.  
8 The highest Netherlands administrative court, the Afdeling bestuursrechtspraak 
(Chamber for Contentious Administrative Proceedings) of the Raad van State 
(Council of State), ruled in 2012 5 that the Ruiz Zambrano and Dereci judgments 
are also relevant in a case in which the child, as a minor citizen of the Union, is 
located outside the territory of the Union. That judgment concerned two children, 
of whom one was born in the Netherlands and had initially lived there and the 
other had never resided in the Netherlands. In that case, however, it was 
established that the third-country national was the sole parent of the minor Union 
citizens because the other parent had died. The referring court deduces from the 
judgment in O. and Others that it is also relevant to the present case whether the 
applicant has sole parental responsibility for the child. After all, it is precisely the 
fact that a child is dependent on a third-country national that prevents that child 
from exercising his or her rights as a Union citizen.  
9 Finally, the judgment in Chavez-Vilchez and Others laid down criteria for 
assessing whether a relationship of dependency does in fact exist between the 
minor Union citizen and the parent who is a third-country national, which would 
compel the child to leave the territory of the Union as a result of the parent’s 
departure. Such as assessment must ‘take into account, in the best interests of the 
child concerned, all the specific circumstances, including the age of the child, the 
child’s physical and emotional development, the extent of his emotional ties both 
to the Union citizen parent and to the third-country national parent, and the risks 
which separation from the latter might entail for the child’s equilibrium’.  
10 In the judgment of the Afdeling Bestuursrechtspraak referred to above, it was 
indeed held that the case-law of the Court of Justice on Union citizenship also 
applies when the minor Union citizen resides outside the Union, but the question 
of whether that is in fact the case has never been referred to the Court of Justice. 
In any event, without the application of that case-law, the third-country parent 
concerned would never be able to derive a right of residence in the Netherlands 
from Article 8 of the Convention for the Protection of Human Rights and 
Fundamental Freedoms. That article only allows residence with a family member 
of at least 21 years of age. By definition, the minor Union citizen cannot comply 
with that requirement.  
11 The referring court observes that, according to case-law cited, a European Union 
citizen derives his rights directly from Union citizenship. That means that it is not 
 
5 Judgment of 7 March 2012, ABRvS, ECLI:NL:RVS:2012:BV8631. 
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necessary for a Union citizen to demonstrate an interest in the exercise of his 
European Union rights. However, minors cannot exercise those rights 
independently. They have no say over their place of residence, but are dependent 
on their parent(s). That could involve a claim being made on behalf of a minor 
Union citizen for the right to exercise his rights as a Union citizen, whereas that 
might possibly be contrary to other interests of the child as referred to in the 
judgment of Chavez-Vilchez and Others. In that regard, the Dereci judgment 
raises the question of whether the Member States may not place any obstacles at 
all in the way of the minor exercising the rights associated with Union citizenship 
or whether there might even be a positive obligation to enable the exercise of 
those rights. 
12 Finally, the referring court asks the Court of Justice whether, in assessing whether 
there is a relationship of dependency compelling the grant of a residence permit to 
the third-country parent, the decisive factor is whether or not that parent was 
responsible for the day-to-day care of the child and whether others assumed the 
responsibility for that care in the past and could continue to do so. Or could the 
child be required to settle with the parent who is a Union citizen, regardless of 
whether that parent wishes to assume the legal and financial responsibilities and 
care of the child? A further question is whether the situation is any different if 
only one parent has parental responsibility for the child.