Following a preliminary reference from the Rechtbank Den Haag (District Court of The Hague), the Court of Justice was required to address a number of questions concerning EU citizenship and the interpretation of Article 20 TFEU. The dispute in the main proceedings arose from the refusal by the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security) to grant a residence permit to a Moroccan national who was the mother of a minor Dutch national residing in the Netherlands. The national court hearing the action brought against the decision of the competent national authority referred a number of questions to the Court of Justice seeking clarification of the scope of the Zambrano case law.

As reformulated by the Court, the question was whether Article 20 TFEU, read in the light of Articles 7 and 24 of the Charter, precludes the refusal to grant a derived right of residence to the parent of a minor EU citizen who holds a valid residence permit in another Member State, without first ascertaining whether the family life enjoyed by the child with both parents could in fact continue in another Member State.

The judgment considers both the possibility that the mother holds a residence permit in Spain and the situation, already addressed on several occasions in the Court’s case law, in which she would be required to return to her country of origin outside the European Union. In both scenarios, the Court’s reasoning builds upon a reconstruction of the meaning of the right to move and reside freely within the territory of the Member States. That right is characterised as a “primary and individual” right (para. 33), in contrast to the right of third-country nationals to reside in the Union, which is derived from that of the Union citizens.

The first condition for the exceptional grant of a residence right on the basis of Article 20 TFEU in a situation such as that at issue in the Safi case is the existence of a relationship of dependency between the applicant and the EU citizen. That relationship must be assessed in the light of a number of criteria already identified in the Court’s case law, including custody of the child and the legal, financial and emotional responsibility for his or her care.

Having found that all the conditions required for the existence of a relationship of dependency were satisfied, the Court carried out an overall assessment of the family situation and attached particular importance to the child’s rights arising from family relationships. These include the right to respect for family life guaranteed by Article 7 of the Charter and the child’s best interests, as provided for in Article 24(2) of the Charter, but also, and more specifically, Article 24(3) of the Charter, which enshrines the child’s right to maintain regular personal relationships and direct contact with both parents.

Although the child’s rights had already been invoked in a number of earlier judgments, the Court had focused on those guaranteed by Articles 7 and 24(2) of the Charter, considering them, however, only in an ancillary role in the context of the assessment of whether a derived right of residence should be recognized.

In Safi, by contrast, drawing on an earlier judgment – Subdelegación del Gobierno en Toledo, Case C-451/19 – the Court also relied on the right of the child to maintain personal relations and direct contact with both parents under Article 24(3) of the Charter as a relevant parameter in assessing the existence of a relationship of dependency.

Consistently with the importance attached to family relationships, the judgment also refers to a rebuttable presumption based on the child’s stable cohabitation with both parents and on the fact that custody, as well as the legal, emotional and financial responsibility for the child’s care, is shared by both parents on a daily basis. Where those circumstances are present, as they were in the case at hand, a relationship of dependency between the child and each of the two parents must be presumed, irrespective of their nationality and of whether they have an unconditional right to reside in the territory of the Member State concerned.

It follows that, if the mother were required to return to her country of origin outside the European Union, the child would be exposed to the risk of having to leave the territory of the Union “as a whole” in order to follow the parent on whom he or she is dependent. Against that background, the Court concluded that, in such circumstances, refusing the mother a right of residence would have the effect of depriving the child of the “genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen”, contrary to Article 20 TFEU. Article 20 TFEU must therefore be interpreted as requiring, in the circumstances of the case, the recognition of a derived right of residence in favour of the mother.

The possibility of the mother being required to return to her country of origin outside the Union would, however, be excluded if she continued to hold a valid residence permit in Spain. This circumstance distinguishes Safi from the situations that had previously contributed to the development of the Zambrano doctrine, in which the risk faced by the Union citizen concerned was that of leaving the territory of the Union “as a whole”, rather than, as in the present case, moving to another Member State.

Nevertheless, in the Court’s judgment, the scenario in which the Union citizen would leave the territory of the Union is treated in the same way as the situation in which the mother holds a valid residence permit in Spain and the child would therefore be required to accompany her to another Member State of the Union. In doing so, the judgment in Safi extends the range of situations falling within the Zambrano line of case law that may potentially justify the exceptional recognition of a right of residence under Article 20 TFEU.

The rationale underlying the exceptional grant of a residence right to the mother lies in the need to protect certain fundamental rights of the child, which would be jeopardised both by a move outside the Union and by a move to another Member State. In this regard, the reasoning of the judgment points to two distinct categories of relevant rights. On the one hand, there are the citizenship rights, in particular that to move and reside freely within the Union territory. On the other hand, there are the rights of the child, in particular those relating to family relationships and protected by Articles 7 and 24(2) and (3) of the Charter. This latter category of rights plays a dual role in the Court’s assessment. In addition to serving as a parameter for determining whether a relationship of dependency exists, the children’s rights  have an independent significance for being the interests liable to be adversely affected by the refusal and thus justifying the exceptional recognition of a residence right based on Article 20 TFEU.

 

(Comment by Valeria Salese)