Opinion of the Advocate General — ECLI:EU:C:2025:650
Date: 2025-09-04
Language of the case: Dutch

Summary C-147/24 – 1 
Case C-147/24 [Safi] i 
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:  
26 February 2024 
Referring court:  
Rechtbank Den Haag (Netherlands) 
Date of the decision to refer:  
26 February 2024 
Appellant:  
V 
Respondent:  
Staatssecretaris van Justitie en Veiligheid 
  
Subject of the action in the main proceedings 
Appeal against the refusal of a derived right of residence in the Netherlands under 
Article 20 TFEU for a third-country national who already has a right of residence 
in another Member State and is the parent of a child of Netherlands nationality 
living in the Netherlands. 
Subject and legal basis of the request for a preliminary ruling 
Interpretation of Article 20 TFEU on the possible grant of a derived right of 
residence where the third-country national does not have to leave the territory of 
the Union in the event of the refusal of a right of residence, but may return to the 
Member State where he or she has a right of residence. Weight to be given in such 
a case to the child’s relationship of dependency with that parent, the best interests 
of that child, respect for family life and the possible need for the child to exercise 
the rights of free movement. Article 267 TFEU 
 
i This is a fictitious name, which does not correspond to the actual name of any party to these proceedings. 
EN 
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Questions referred for a preliminary ruling 
I Is Article 20 TFEU to be interpreted as meaning that it is not excluded that a 
third-country parent must be granted a derived right of residence in the Member 
State of which his or her minor child is a national and where his or her child 
resides without having made use of his or her citizenship rights, while that third-
country parent has a right of residence in another Member State? 
If it is not excluded that a third-country parent must be granted a derived right of 
residence in the Member State of which his or her minor child is a national and 
where his or her child resides without having made use of his or her citizenship 
rights, while that third-country parent has a right of residence in another Member 
State: 
II Having regard to Article 5(a) and (b) of Directive 2008/115 and Article 6(2) 
of Directive 2008/115, does it follow from Article 20 TFEU, where a relationship 
of dependency exists, such as that which provides grounds for the grant of a 
derived right of residence under Article 20 TFEU, that there is an obligation on 
the decision-making authority to ascertain whether the exercise of the right of free 
movement and residence is in the best interests of the child, and whether the 
exercise of family life can continue, before instructing the third-country parent to 
move immediately to the Member State where he or she holds a residence permit 
or other authorisation offering a right to stay, and should these factors be taken 
into account when assessing the application for a derived right of residence? 
Provisions of EU law and international law relied on, and case-law of the 
Court 
Article 3 of the Convention on the Rights of the Child  
Article 8 ECHR 
Article 20 TFEU 
Articles 7 and 24 of the Charter of Fundamental Rights  
Directive 2008/115/EC, Articles 5 and 6 
Judgments of 5 May 2022, Subdelegación del Gobierno en Toledo v XU and QP 
(Joined Cases C-451/19 and C-532/19); 8 March 2011, Zambrano (C-34/09); 
7 September 2022, Staatssecretaris van Justitie en Veiligheid (Nature of the right 
of residence under Article 20 TFEU) (C-624/20); 22 June 2023, Staatssecretaris 
van Justitie en Veiligheid (Thai mother of a Netherlands minor) (C-459/20); 
15 November 2011, Dereci (C-256/11); 14 January 2021, Staatssecretaris van 
Justitie en Veiligheid (Return of an unaccompanied minor) (C-441/19); 
22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – 
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Medicinal cannabis) (C-69/21); 11 March 2021, État belge (Return of the parent 
of a minor) (C-112/20) 
Opinions in the cases of Zambrano (C-34/09), and Staatssecretaris van Justitie en 
Veiligheid (Persons who identify with the values of the Union) (C-646/21) 
Provisions of national law relied on 
Article 8 of the Vreemdelingenwet 2000 (Law on Foreign Nationals of 2000) 
provides that a foreign national is lawfully resident in the Netherlands as a 
community national as long as the national concerned resides in the Netherlands 
pursuant to a regulation under the TFEU. 
Paragraph B10/2.2 of the Vreemdelingencirculaire 2000 (Circular of 2000 on 
Foreign Nationals) provides that such lawful residence is subject to all the 
following conditions being met: 
‘a. the foreign national must make a plausible case with regard to his or her 
identity and nationality […]; 
b. the foreign national has a minor child who has Netherlands nationality; 
c. the foreign national, whether jointly with the other parent or not, performs 
tasks relating to the care of the minor; and 
d. there is such a relationship of dependency between the foreign national and 
the child that the child would be forced to leave the territory of the Union if the 
foreign national were refused a right of residence. 
[…]’ 
Under this provision, the foreign national who seeks residence as a custodial 
parent will not be granted a residence permit if he or she already has a right of 
residence in another Member State. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The appellant has Moroccan nationality and, with her Netherlands/Moroccan 
husband, is the parent of a minor son who has Netherlands nationality. This son 
has a speech and language impairment and receives special education. He is cared 
for jointly by the cohabiting parents. Due to medical problems, the father has no 
income from work but receives social assistance benefits. He is exempt from the 
obligation to work. 
2 The appellant resided in Spain between 1999 and 2014 and has a right of 
residence there, which is still valid despite her request to the Spanish authorities to 
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revoke it. Since 2014, she has been residing in the Netherlands without a valid 
permit, and she has never had any encounter with the justice system. 
3 She applied for a derived right of residence as a family member of a Union citizen 
under Article 20 TFEU, which was refused by the respondent. She has made no 
other applications in the Netherlands. For their part, the father and son never 
exercised their freedom of movement. 
The essential arguments of the parties in the main proceedings 
4 The appellant claims that she can derive a right of residence under Article 20 
TFEU because her son is dependent on her. In response to the respondent’s refusal 
of that right, she argues that she must be granted a residence permit on the basis of 
Article 8 ECHR. 
5 The respondent justifies its refusal of a right of residence under Article 20 TFEU 
by the fact that the appellant already has a right of residence in Spain. It examined 
ex officio whether she was then still eligible for a residence permit on the basis of 
Article 8 ECHR. However, despite its finding that a family and private life did 
exist in the Netherlands, it held that the interests of the Netherlands Government 
outweighed the personal interests of the appellant and her family. 
6 The resulting refusal of the residence permit is also an order to move immediately 
to Spain. The minor son can accompany the appellant and therefore does not have 
to leave the territory of the Union as a whole. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
(a) Characteristics of a derived right of residence 
7 The referring court infers from the Court’s judgment of 5 May 2022, XU and QP 
(C-451/19 and C-532/19), that in order for a derived right of residence to be 
granted under Article 20 TFEU, there must not only be a very particular situation 
and a relationship of dependency, but also that that grant is only a possibility 
where no rights of residence can be derived from secondary European Union law 
or from national law (as is the case for the appellant). The derived right of 
residence is thus subsidiary in scope. 
8 In the Netherlands, a derived right of residence is granted if there is a relationship 
of dependency between the third-country parent and the Netherlands child who 
lives in the Netherlands and who has not (yet) exercised his [or her] right of free 
movement and residence. If a right of residence is refused under Article 20 TFEU, 
an application to that effect must still be examined ex officio by the respondent 
under Article 8 ECHR, but not under secondary Union or national law. Nor do the 
courts usually examine ex officio whether a right of residence can be granted 
under any other provision. 
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9 According to the referring court, Article 8 ECHR and Article 20 TFEU require 
substantially different assessments. In the case of the former, the State may weigh 
up the individual interest (family life) of the appellant against the interest of the 
State, and it has a certain margin of discretion in doing so. Thus, weight can be 
given to factors such as possible objective obstacles to establishing family life 
elsewhere and the best interests of the child. In the case of Article 20 TFEU, 
however, the two interests are not weighed up against each other. Only the degree 
of dependency between the child and the third-country parent is decisive. 
10 The respondent refused a right of residence under Article 20 TFEU on the basis of 
its interpretation of the Court’s case-law to the effect that a derived right of 
residence is granted only if a relationship of dependency exists between the third-
country parent and his or her Union citizen child such that, in the absence of a 
right of residence for the parent, the child would be obliged to leave the territory 
of the Union as a whole. 
11 The referring court raises the question whether, when examining the appellant’s 
application under Article 20 TFEU, it is sufficient to apply the principles that can 
be inferred from the case-law of the Court. More specifically, its question is 
whether the appellant’s right of residence in Spain means that, when assessing the 
best interests of her child, it is only necessary to establish that his or her Union 
citizenship rights are safeguarded because he or she is not required to leave the 
Union. 
12 In that regard, the referring court considers that, according to the judgment of 
7 September 2022, Staatssecretaris van Justitie en Veiligheid (Nature of the right 
of residence under Article 20 TFEU) (C-624/20), when assessing the relationship 
of dependency between parent and child with a view to the child’s best interests, 
all the circumstances concerned must be taken into account. These include the 
cohabitation on a stable basis of the third-country parent with the other parent who 
is a Union citizen and the existence of personal and direct contacts with both 
parents. These conditions are met in the present case. However, in refusing the 
application, the respondent did not examine the child’s best interests, the existence 
of a relationship of dependency or the implications for family life. 
13 According to the Court’s judgment in Subdelegación del Gobierno and Toledo 
(C-451/19 and C-532/19), the mere existence of a family relationship between a 
Union citizen and a third-country national is not in itself sufficient to confer a 
derived right of residence. The referring court considers that it can infer from this 
that the Court requires a particular relationship of dependency. 
14 It found that the relationship of dependency between the appellant and her child 
was sufficiently intense for a derived right of residence under Article 20 TFEU. 
Without that right of residence, the child would be obliged to accompany the 
appellant. At the same time, however, the child also has a relationship of 
dependency with his father. 
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15 If a child who is a Union citizen is forced to leave the Union, he [or she] is 
deprived of the effective enjoyment of his [or her] Union rights. The referring 
court infers from the Court’s case-law that it is precisely those rights of the child 
that constitute the justification for the grant of a derived right of residence. That 
right under Article 20 TFEU is not a personal right of the third-country parent, but 
a right derived from the Union citizenship of the minor child who is dependent on 
that parent. 
16 The referring court raises the question whether the Court’s case-law on Article 20 
TFEU and the obligation to leave the territory of the Union applies in full where 
the third-country parent has a right of residence in a Member State other than that 
of which the child is a national and where he [or she] resides. 
(b) Assessment of the relationship of dependency 
17 According to the Court, the assessment of the relationship of dependency must 
take due account of all the circumstances and the child’s best interests, such as his 
or her age and emotional development. According to the judgment of 22 June 
2023, Staatssecretaris van Justitie en Veiligheid (Thai mother of a minor 
Netherlands child) (C-459/20), those interests cannot be invoked to reject an 
application, but rather to prevent the adoption of a decision obliging the child to 
leave the Union. 
18 The European Commission appears to infer from that judgment that the child’s 
best interests should not, however, be the primary consideration when assessing 
an application for a derived right of residence. 
19 The referring court wishes to ascertain from the Court whether the authorities 
must take due account of the best interests of the child and of respect for private 
and family life exclusively when assessing the relationship of dependency, or 
whether those elements form an integral part of the assessment and constitute a 
primary consideration in the decision-making process. 
20 So far, the Court has only mentioned the child’s best interests when explaining 
which circumstances should be taken into account when assessing the intensity of 
the relationship of dependency. That does not necessarily mean that the child’s 
best interests carry no further weight. Indeed, in previous cases, the assessment of 
the relationship of dependency was the core of the assessment to be made. If the 
need – because of the relationship of dependency – to leave the Member State in 
which the child resides and of which he [or she] is a national is also relevant when 
assessing the application for a derived right of residence, thus requiring additional 
and more extensive investigation, the child’s best interests will have to be 
included in that investigation. 
21 The answer to the questions cannot be deduced from the Court’s case-law. The 
situation featured in this case has not yet come before the Court. It is clear to the 
referring court that in cases where the third-country parent was not granted a right 
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of residence in the Union because there was no relationship of dependency, the 
child’s best interests were only a relevant factor when assessing the intensity of 
that relationship. However, if the assessment of whether a relationship of 
dependency exists cannot be regarded as constituting a full assessment of whether 
a derived right of residence should be granted, the question arises as to how the 
decision-making authority should involve the child’s interests in the final 
assessment of the application to grant a derived right of residence. 
(c) Need to exercise the right of free movement  
22 The relationship of dependency between the appellant and her child is such that, if 
the appellant is not granted a right of residence, the child will have to follow her 
and leave Netherlands territory, but not that of the Union. The child is thus 
compelled to exercise his right of free movement and residence. 
23 In the judgment in Subdelegación del Gobierno and Toledo, the Court held that a 
principle of international law precludes a Member State from denying its own 
nationals the right to enter and reside in its territory. Thus, a Member State may 
not oblige a national to leave its territory. In the present case, however, that would 
indeed be the case as a result of the relationship of dependency. 
24 A derived right of residence is not a personal right of the third-country parent, but 
a right derived from the Union citizenship of the minor child who is dependent on 
that parent. According to the referring court, it is precisely the rights of the child 
that determine whether his parent should be granted a right of residence. 
25 If the Court interprets Article 20 TFEU to mean that, in the present case, the 
appellant need not be granted a derived right of residence in the Netherlands, it 
means that the child, a Union citizen, is compelled to exercise his right of free 
movement and residence because of the relationship of dependency. 
26 The rationale of Article 20 TFEU is that the child retains his rights as a Union 
citizen. In the present case, the child must exercise his right of free movement and 
residence in order to maintain personal contact with both his parents. According to 
the referring court, the essence of a right is that there is also the freedom not to 
exercise it. That freedom is negated when, because of the relationship of 
dependency, the child must follow his mother to Spain. 
27 The question is whether this obligation on a minor Union citizen is justified when 
merely assessing whether the child will be able to remain in the territory of the 
Union. This does not entail a more far-reaching examination of the interests of the 
minor Union citizen and whether it is in his [or her] interests to have to exercise 
his [or her] right of free movement and residence. 
28 It may in fact be in the child’s interest to remain in the Member State of which he 
[or she] is a national. This interest is not taken into account if it is only necessary 
to assess whether the refusal of a derived right of residence means that the Union 
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citizen child should leave the Union as a whole. The question then is whether 
further examination of the child’s best interests can be dispensed with, since the 
preservation of his [or her] Union citizenship rights is the justification for granting 
a derived right of residence to his [or her] parent. 
29 According to the Charter, every child has the right to maintain on a regular basis a 
personal relationship and direct contact with both his or her parents, and the right 
to family life must be respected. That family life is given weight only when 
assessing the intensity of the relationship of dependency. Where a derived right of 
residence is refused because the third-country parent is not required to leave the 
Union, no further examination is made of the consequences of that refusal for 
family life. Thus, in the present case, the spouse will also have to go to Spain to 
preserve family unity. 
30 The respondent, when refusing the derived right of residence, did not examine the 
family’s options for continuing family life in Spain. According to the appellant, 
the father does not meet the conditions for residing in Spain for an indefinite 
period. The child will then have to choose the parent with whom he wishes to 
reside. This cannot be required of a child and is probably not in his best interests. 
Moreover, the relationship of dependency exists not only in relation to the third-
country parent, but also in relation to the Union citizen parent. 
31 The respondent did examine that circumstance when making an assessment under 
Article 8 ECHR, but in so doing it gave greater weight to the general interest of 
the State. The referring court notes that the appellant must formulate and 
substantiate her interests in that context and wishes to ascertain whether the 
respondent has a more far-reaching duty of investigation in a situation such as that 
in the present case. 
(d) Weight of the interests of the child 
32 According to the referring court, the best interests of the child encompass more 
than having and preserving Union citizenship rights. From the Court’s case-law 
[Opinion in Case C-646/21, Staatssecretaris van Justitie en Veiligheid 
(Individuals who identify with the values of the Union), and the judgments in État 
belge (Return of the parent of a minor) (C-112/20) and Belgische Staat (Married 
refugee minor) (C-230/21)], it deduces that even if the minor is not the appellant, 
but the outcome of the proceedings has consequences for that minor, the child’s 
best interests must be taken into account in assessing the application in those 
proceedings. 
33 The Court has already ruled that the best interests of the child could be invoked to 
prevent the adoption of a decision that would oblige that child to leave the 
territory of the Union as a whole. However, case-law on the situation where the 
child is obliged to leave the territory of his [or her] Member State is lacking. The 
referring court does not automatically accept that, according to the Court, the 
child’s best interests and respect for family life do not carry any weight where, in 
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the event of a refusal of a right of residence for his [or her] parent, a child does not 
have to leave the Union but must follow his [or her] parent to another Member 
State. 
34 According to the referring court, the question is how the fundamental rights under 
Articles 7 and 24 of the Charter can have weight in a situation such as that in the 
present case, and it refers to AG Sharpston’s Opinion in Zambrano (C-34/09). 
There it is stated that the exercise of the rights of free movement takes place under 
the protection of those fundamental rights. 
35 If, when assessing a derived right of residence, it is only necessary to establish 
that the appellant does not have to leave the Union, the child’s interests are limited 
to establishing that his Union citizenship rights have been preserved. The question 
is whether that is acceptable in the specific context of Union citizenship. 
36 According to Article 24(2) of the Charter, the child’s best interests must be a 
primary consideration in all actions relating to children. The protection of the best 
interests of the child can be regarded as a general objective of the Union. 
However, Union law does not seem to explicitly provide that the decision-making 
authority must determine the best interests of the child in any specific proceedings 
concerning the law relating to foreign nationals. 
37 The Committee on the Rights of the Child of the United Nations has elaborated in 
its General Comments that and how the best interests of the child should be 
determined. Once these interests have been determined, they must be weighed up. 
The Court pointed out in its judgment in Staatssecretaris van Justitie en 
Veiligheid (Return of an Unaccompanied Minor) (C-441/19) that the best interests 
of the child must be a primary consideration in all actions where minors are 
involved in proceedings, but did not elaborate in that judgment on the weight to be 
given to those interests. 
38 Further clarification on this point was sought in Staatssecretaris van Justitie en 
Veiligheid (Individuals who identify with the values of the Union) (C-646/21). In 
the Opinion in that case, the AG, in accordance with his reasoning in points 54, 
56, 58, 60 and 61, suggested to the Court that a substantive assessment of an 
application for international protection that does not take into account, as a 
primary consideration, the best interests of the child, or weighs up the best 
interests of the child without first determining, in each procedure, what the best 
interests of the child are, is incompatible with Union law. According to the 
referring court, the answer to the question in Case C-646/21 is also relevant to the 
reference for a preliminary ruling on the further interpretation of Article 20 TFEU. 
39 It is difficult to see why a Member State’s legal obligations under the Convention 
on the Rights of the Child and the Charter should not apply, or should apply to a 
lesser extent, when assessing an application for a derived right of residence under 
Article 20 TFEU. If the Court interprets that article to mean that only the 
preservation of the minor son’s Union citizenship rights is relevant and the 
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possibility of the appellant acquiring a derived right of residence under Article 20 
TFEU is therefore precluded, the best interests of the appellant’s minor child are 
not being examined further. The respondent cannot then fulfil its obligation under 
the Treaty and EU law to give full consideration to the child’s best interests in all 
its actions and thus in the decision on the appellant’s application. 
40 Although the rationale of Article 20 TFEU is the preservation of the citizenship 
rights of the Union citizen, the referring court is of the view that that cannot mean 
that the child’s more comprehensive interests – such as his interest in being able to 
remain in his Member State and not being separated from his third-country 
parent – are not further examined and are not taken into account when assessing 
the application for a derived right of residence. 
(e) Respect for family life 
41 The Court held in the Dereci judgment (C-256/11) that the right to respect for 
family life is not among the principal rights conferred by the status as a citizen of 
the Union and that that right is not sufficient in itself to bring within the scope of 
Union law the situation of a Union citizen who has not exercised his or her right 
of free movement. 
42 In the present case, family life does constitute a relevant factor in assessing the 
relationship of dependency. If the appellant is excluded from a derived right of 
residence, family life would not carry any weight in assessing whether that right 
should be granted. 
43 The derived right of residence serves to protect the genuine enjoyment of the 
citizenship rights of the Union citizen who has a relationship of dependency with 
the third-country national. According to the referring court, that enjoyment 
encompasses not only the right of free movement but also the Charter. Its question 
is therefore whether it is justified not to give any weight to the child’s family life 
when assessing whether the appellant should be granted a derived right of 
residence. The respondent completely disregarded such family life in its decision-
making. 
(f) Interpretation of Directive 2008/115 
44 Refusal of the derived right of residence implies that the appellant is not or is no 
longer lawfully resident in the territory of the Member State where this application 
was made. The Member State must then, according to Directive 2008/115, issue a 
return decision and, if applicable, order the third-country national to return 
immediately to the Member State where he [or she] has a right of residence. 
45 In principle, Directive 2008/115 only regulates departure from Member States, not 
admission to them. However, the refusal of a derived right of residence also 
establishes unlawful residence and thus – in principle – imposes a duty to leave 
the territory of the Netherlands in implementation of this Directive. According to 
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Article 5 of Directive 2008/115, when implementing this Directive, Member 
States must take due account of – inter alia – the best interests of the child and 
family life. 
46 The Court has ruled in greater detail on the obligation to take due account of the 
best interests of the child [see judgment of 14 January 2021, Staatssecretaris van 
Justitie en Veiligheid (Return of an unaccompanied minor) (C-441/19, 
paragraphs 43-47, 51 and 60)] and family life [see judgment of 22 November 
2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), 
C-69/21, paragraphs 88-91] before a return decision is issued. The referring court 
asks the Court to clarify whether that obligation has the same scope and extent if 
no return decision is issued but the illegal residence is terminated by ordering the 
third-country national to move immediately to the territory of another Member 
State. 
47 The referring court considers it to be apparent from the cited case-law of the Court 
that, when assessing an application for a derived right of residence, it must be 
clear to the respondent that it is complying with the obligation under Directive 
2008/115 and must therefore take due account of the best interests of the child and 
family life, as well as the consequences of a refusal. The referring court wishes to 
ascertain from the Court how the obligations under Directive 2008/115 relate to 
the assessment of an application under Article 20 TFEU. 
48 In the present case, the respondent did not carry out any further investigation into 
the consequences of the refusal or whether the family meets the conditions for 
long-term residence in Spain. The referring court raises the question of whether a 
situation such as that in the present case gives rise to a duty to investigate so as to 
ascertain from the Spanish authorities whether family life is able to continue in 
Spain. 
49 According to the Court’s interpretation, the rights guaranteed by Articles 7 and 24 
of the Charter do not have an absolute character. However, the referring court is 
not seeking to ascertain from the Court whether the best interests of the child and 
family life in the Netherlands entail a duty to grant the appellant a derived right of 
residence. It seeks only a clarification of the provisions obliging the respondent to 
order the appellant to move to Spain, and to ascertain whether the consequences 
for family life of the forced departure to Spain are a relevant factor in assessing 
whether the appellant should be granted a derived right of residence and, if so, 
whether this entails a duty of investigation for the respondent. 
50 It also in essence raises the question whether the obligations laid down in 
Article 6(2) and Article 5 of Directive 2008/115 impose a similar duty of 
investigation on the authorities when assessing an application for a derived right 
of residence submitted by a third-country parent. 
51 Clarification of the foregoing is necessary for the referring court to give a ruling in 
the main proceedings.