Indian citizens whose young children who have European nationality could benefit from a new European Court of Justice ruling. The ruling, which came late on Wednesday, clarifies residency rights for non-EU parents, who have had a child with an EU citizen, if they were able to show a relationship of dependency between them and the child.
“For example, if you are an Indian national residing in a European Economic Area (EEA) country, you may be able to claim a right of residence in that country on the basis of your relationship with an EEA national minor child,” says Kamal Rahman, head of the immigration group at law firm Mishcon de Reya in London. “To do so, it would be necessary to show that there is a relationship of such dependency between you, as the non-EEA parent, and the child that if you were denied a right of residence in the EEA, the child would also be forced to leave, and therefore deprived of the benefits of EEA citizenship.” Cases such as these will usually come about where there has been a breakdown in the relationship between the parents of an EEA national child (one of whose parents’ is an EEA national, and the other is not).
Open approach
While rights of residence already exist under European law for non-EEA parents who are the primary careers of minor EEA national children, Wednesday’s ruling appeared to provide a more open approach, said Mr. Rahman. “It clarifies that non-EEA parents may have a right of residence even where the other EEA parent is ‘willing and able’ to assume sole responsibility for the child”.
However, Mr. Rahman noted that the ruling went against U.K. government policy and that it would be unclear whether and how the ruling will be implemented in the U.K. “This is, of course, particularly uncertain in light of the U.K.’s decision to leave the European Union. At Mishcon de Reya, we have been assisting increasing numbers of clients who wish to secure their residency in the U.K. under European law in advance of Brexit and there is understandable anxiety among both EEA nationals and their non-EEA national family members currently residing in this country.”
Most vulnerable
“It is currently very unclear how the rights of those residing in the U.K. by virtue of European law will be affected after Brexit. Those who are most vulnerable are those such as highlighted in Wednesday’s ECJ ruling, being the non-EEA family members of EEA nationals, including those who derive their right of residence from their child, or another EEA family member.”
The ECJ ruling originates from the case of Venezuelan national who had a child with a Dutch national in the Netherlands and then lived in Germany. Because she was unable to get a right of residence, she could not claim social assistance and child benefits. The Luxembourg-based court said authorities had to take into account the right to family life and best interests of the child, including the impact that the non-EU parent losing their residency would have on the child’s emotional and physical well-being.
