Must Article 20 TFEU be interpreted as precluding a Member State from depriving a third-country national who is responsible for the day-to-day and primary care of his/her minor child, who is a national of that Member State, of the right of residence in that Member State?

A Member State can refuse residence if the other parent, a Union citizen, can care for the child, but must assess dependency.

In answering that question, is it relevant that it is that parent on whom the child is entirely dependent, legally, financial and/or emotionally and, furthermore, that it cannot be excluded that the other parent, who is a national of the Member State, might in fact be able to care for the child?

The dependency on the third-country national parent must be assessed, considering all circumstances, including the child's best interests.

In that case, should the parent/third-country national have to make a plausible case that the other parent is not able to assume responsibility for the care of the child, so that the child would be obliged to leave the territory of the European Union if the parent/third-country national is denied a right of residence?

Yes, the third-country national must provide evidence, but authorities must verify the other parent's capability to care for the child.

Article 20 TFEU does not prevent Member States from requiring proof that refusal affects a child's EU rights.

European Court of Justice · Judgment · Preliminary ruling

‛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’

Rechtsvraag

Must Article 20 TFEU be interpreted as precluding a Member State from refusing a right of residence to a third-country national who is responsible for the primary care of their child, a citizen of that Member State, when the other parent might be able to care for the child?

Regel

Article 20 TFEU (Treaty on the Functioning of the European Union) (Grants Union citizens the right to move and reside freely within the territory of the Member States.)
Article 21 TFEU (Treaty on the Functioning of the European Union) (Confers the right to move and reside freely across Member States, reinforcing the rights of Union citizens.)
Directive 2004/38/EC (Right of Union citizens and their family members to move and reside freely within the Member States.)

Conclusie

Article 20 TFEU does not preclude a Member State from requiring a third-country national to prove that refusal of residence would deprive their child of EU citizenship rights. The authorities must ensure the national legislation's application does not undermine Article 20's effectiveness. The child's dependency and the Union citizen parent's ability to care for the child are relevant factors, but not solely determinative. An assessment considering all specific circumstances is necessary.

Tijdlijn

2007 Ms Chavez-Vilchez, a Venezuelan national, came to the Netherlands on a tourist visa.
30-03-2009 Ms Chavez-Vilchez had a child with a Netherlands national, and the child has Netherlands nationality.
2004 Ms Pinas, a national of Surinam, was the holder of a residence permit in the Netherlands.
23-12-2009 Ms Pinas had a child with a Netherlands national, and the child has Netherlands nationality.
2003 Ms Nikolic came to the Netherlands from the former Yugoslavia.
26-01-2010 Ms Nikolic had a child with a Netherlands national, and the child has Netherlands nationality.
09-04-2008 Ms García Pérez had a child with a Netherlands national, and the child has Netherlands nationality.
12-12-2011 Ms Uwituze, a Rwandan national, gave birth to a child with Netherlands nationality.
25-11-2009 Ms Wip, a national of Surinam, gave birth to a child with Netherlands nationality.
23-11-2012 Ms Wip gave birth to a second child with Netherlands nationality.
02-05-2008 Ms Enowassam, a national of Cameroon, gave birth to a child with Netherlands nationality.
31-03-2011 Ms Guerrero Chavez, a Venezuelan national, gave birth to a child with Netherlands nationality.