H.C. Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank and Others.
Date: 2017-05-10
48


As the Court has consistently held, even though, formally, the referring court has limited its questions to the interpretation of Article 20 TFEU alone, such a situation does not prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating on the cases before it, whether or not that court has specifically referred to them in its questions (see, to that effect, judgments of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraph 24; of 19 September 2013, Betriu Montull, C‑5/12, EU:C:2013:571, paragraph 41; and of 10 October 2013, Alokpa and Moudoulou, C‑86/12, EU:C:2013:645, paragraph 20).
49


In this case, it is appropriate to analyse, first, the situation of the child of Ms Chavez-Vilchez and of Ms Chavez-Vilchez herself in the light of Article 21 TFEU and of Directive 2004/38, whose objective is to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States, a right which is conferred directly on Union citizens by Article 21(1) TFEU and whose objective is in particular to reinforce that right (see, to that effect, judgments of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraph 28, and of 12 March 2014, O. and B.,C‑456/12, EU:C:2014:135, paragraph 35) and, second, the respective situations of the children of the other applicants in the main proceedings, who have always resided with their mothers before and during the period relevant to the applications for social assistance or child benefit at issue in the main proceedings, in the Member State of which they are nationals, and the situations of those applicants themselves, from the perspective of Article 20 TFEU.
52


As regards the existence of a derived right of residence, based on Article 21(1) TFEU and Directive 2004/38, the Court has held that that directive confers rights of entry into and residence in a Member State not on all third-country nationals, but solely on those who are a ‘family member’, within the meaning of point 2 of Article 2 of that directive, of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national (judgments of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraph 56; of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 41; and of 18 December 2014, McCarthy and Others, C‑202/13, EU:C:2014:2450, paragraph 36).
53


The Court has, moreover, held that Directive 2004/38 is only applicable to the conditions governing whether a Union citizen can enter and stay in Member States other than that of which he is a national. Directive 2004/38 does not therefore confer a derived right of residence on third-country nationals who are family members of a Union citizen in the Member State of which that citizen is a national (see, to that effect, judgment of 12 March 2014, S. and G., C‑457/12, EU:C:2014:136, paragraph 34).
54


However, the Court has held that, when a Union citizen returns to the Member State of which he is a national, the conditions for granting a derived right of residence, based on Article 21(1) TFEU, to a third-country national who is a family member of that Union citizen and with whom that citizen has resided, solely by virtue of his being a Union citizen, in the host Member State, those conditions should not, in principle, be more strict than those provided for by Directive 2004/38 for the grant of such a right of residence to a third-country national who is a family member of a Union citizen in a case where that citizen has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national (see, to that effect, judgment of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 50).
55


Even though Directive 2004/38 does not cover such a return, it should be applied, by analogy, in respect of the conditions that it lays down for the residence of a Union citizen in a Member State other than that of which he is a national, given that in both cases it is the Union citizen who is the reference person if it is to be possible for a derived right of residence to be granted to a third-country national who is a family member of that Union citizen (judgment of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 50).
60


In accordance with the Court’s settled case-law, the children concerned in the disputes in the main proceedings may, as nationals of a Member State, rely on the rights pertaining to their status as Union citizens conferred on them by Article 20 TFEU, including against the Member State of which they are nationals (see, to that effect, judgments of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraph 48; of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraph 63; and of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraphs 43 and 44).
61


The Court has held that Article 20 TFEU precludes national measures, including decisions refusing a right of residence to the family members of a Union citizen, which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status (judgments of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraph 42, and of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 45).
62


On the other hand, the Treaty provisions on citizenship of the Union do not confer any autonomous right on third-country nationals. Any rights conferred on third-country nationals are not autonomous rights of those nationals but rights derived from those enjoyed by a Union citizen. The purpose and justification of those derived rights are based on the fact that a refusal to allow them would be such as to interfere, in particular, with a Union citizen’s freedom of movement (judgments of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraphs 72 and 73, and of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraphs 27 and 28 and the case-law cited).
63


In this connection, the Court has already held that there are very specific situations in which, despite the fact that secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom of movement, a right of residence must nevertheless be granted to a third-country national who is a family member of that Union citizen, since the effectiveness of Union citizenship would otherwise be undermined, if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the European Union as a whole, thus depriving him of the genuine enjoyment of the substance of the rights conferred by that status (see, to that effect, judgments of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraphs 43 and 44; of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraphs 66 and 67; of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 74; and of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 29).
64


The situations referred to in the preceding paragraph have the common feature that, although they are governed by legislation which falls, a priori, within the competence of the Member States, namely legislation on the right of entry and residence of third-country nationals outside the scope of provisions of EU secondary legislation, which provide for the grant of such a right under certain conditions, those situations nonetheless have an intrinsic connection with the freedom of movement and residence of a Union citizen, which precludes the right of entry and residence from being refused to those nationals in the Member State of residence of that citizen, in order to avoid interference with that freedom (judgments of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 75, and of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 30 and the case-law cited).
65


In this case, if it were to be established, that being a matter for the referring court, that a refusal to allow residence to the third-country nationals at issue in the main proceedings would have the effect that the parties concerned would have to leave the territory of the European Union, the consequence might be a restriction on the rights conferred on their children by their status as Union citizens, in particular the right of residence, since those children might be compelled to accompany their mothers and therefore to leave the territory of the European Union, as a whole. In the event that the mothers were obliged to leave the territory of the European Union, their children would thus be deprived of genuine enjoyment of the substance of the rights conferred on them by their status as Union citizens (see, to that effect, judgment of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 78 and the case-law cited).
68


In that regard, it must be recalled that, in the judgment of 6 December 2012, O and Others (C‑356/11 and C‑357/11, EU:C:2012:776, paragraphs 51 and 56), the Court held that factors of relevance, for the purposes of determining whether a refusal to grant a right of residence to a third-country national parent of a child who is a Union citizen means that that child is deprived of the genuine enjoyment of the substance of the rights conferred on him by that status, include the question of who has custody of the child and whether that child is legally, financially or emotionally dependent on the third-country national parent.
69


As regards the second factor, the Court has stated that it is the relationship of dependency between the Union citizen who is a minor and the third country national who is refused a right of residence that is liable to jeopardise the effectiveness of Union citizenship, since it is that dependency that would lead to the Union citizen being obliged, in practice, to leave not only the territory of the Member State of which he is a national but also that of the European Union as a whole, as a consequence of such a refusal (see, to that effect, judgments of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraphs 43 and 45; of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraphs 65 to 67; and of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 56).
70


In this case, in order to assess the risk that a particular child, who is a Union citizen, might be compelled to leave the territory of the European Union and thereby be deprived of the genuine enjoyment of the substance of the rights conferred on him by Article 20 TFEU if the child’s third-country national parent were to be refused a right of residence in the Member State concerned, it is important to determine, in each case at issue in the main proceedings, 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 competent authorities must take account of the right to respect for family life, as stated in Article 7 of the Charter of Fundamental Rights of the European Union, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of that charter.
74


According to the Netherlands Government, pursuant to the general rule that a party who seeks to rely on certain rights must establish that those rights are applicable to his situation, a rule that is accepted in EU law (see, to that effect, judgments of 8 May 2013, Alarape and Tijani, C‑529/11, EU:C:2013:290, paragraph 38, and of 16 January 2014, Reyes, C‑423/12, EU:C:2014:16, paragraphs 25 to 27), the burden of proof of the existence of a right of residence under Article 20 TFEU lies on the applicants in the main proceedings. It is for them to demonstrate that, because of objective impediments that prevent the Union citizen parent from actually caring for the child, the child is dependent on the third-country national parent to such an extent that the consequence of refusing to grant that third-country national a right of residence would be that the child would be obliged, in practice, to leave the territory of the European Union.
75


In that regard, it must be stated that, in the event that a third-country national, the parent of a minor child who is a national of a Member State and for whose primary day-to-day care that parent is responsible, seeks to obtain from the competent authorities of that Member State recognition of a derived right of residence based on Article 20 TFEU, it is for that third-country national to provide evidence on the basis of which it can be assessed whether the conditions governing the application of that article are satisfied, in particular, evidence that a decision to refuse a right of residence to the third-country national parent would deprive the child of the genuine enjoyment of the substance of the rights attached to his or her status as a Union citizen by obliging the child to leave the territory of the European Union, as a whole.
76


However, as stated by the European Commission, while it is, as a general rule, for the third-country national parent to provide evidence to prove that he or she has a right of residence under Article 20 TFEU, in particular evidence that, if residence were to be refused, the child would be obliged to leave the territory of the European Union, the fact remains that, when undertaking the assessment of the conditions required in order for the third-country national to be able to qualify for such a right of residence, the competent national authorities must ensure that the application of national legislation on the burden of proof such as that at issue in the disputes in the main proceedings does not undermine the effectiveness of Article 20 TFEU.
77


Accordingly, the application of such national legislation on the burden of proof does not relieve the authorities of the Member State concerned of the obligation to undertake, on the basis of the evidence provided by the third-country national, the necessary inquiries to determine where the parent who is a national of that Member State resides and to examine, first, whether that parent is, or is not, actually able and willing to assume sole responsibility for the primary day-to-day care of the child, and, second, whether there is, or is not, such a relationship of dependency between the child and the third-country national parent that a decision to refuse the right of residence to the latter would deprive the child of the genuine enjoyment of the substance of the rights attached to his or her status as a Union citizen by obliging the child to leave the territory of the European Union, as a whole.