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CJEU Case C-133/15 / Opinion

H.C. Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank and Others.

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
08/09/2016

Key facts of the case:

Reference for a preliminary ruling — Union citizenship — Article 20 TFEU — Access to social assistance and child benefit conditional on right of residence in a Member State — Third-country national responsible for the primary day-to-day care of her minor child, a national of that Member State — Obligation on the third-country national to establish that the other parent, a national of that Member State, is not capable of caring for the child — Refusal of residence possibly obliging the child to leave the territory of the Member State, or the territory of the European Union.

Outcome of the case:

In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Centrale Raad van Beroep (Higher Social Security Court, Netherlands) as follows:

  1. Article 20 TFEU must be interpreted as precluding a Member State from depriving a third-country national parent, who is responsible for the primary care of his/her young child who is a Union citizen, of residence in the child’s Member State of residence, of which that child is a national, in so far as such a decision would deny that child the genuine enjoyment of the substance of the rights attaching to the status of Union citizen, where it has not been demonstrated that the other parent, who is a citizen of that same Member State, might be able to assume alone the primary care of the child. It is not sufficient, in that regard, to demonstrate that it cannot be excluded that the other parent might in fact be able to care for the child.
  2. It is for the competent authorities of the Member State to raise the issue ex officio and establish whether the other parent is able to assume responsibility for the primary care of the child. Those authorities must take into account all the circumstances of the case, whilst observing the principles of proportionality and the best interests of the child.