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Rights

EU Rights in the Spotlight – July 2017

The EU Rights in the Spotlight section for this month features three rulings affecting the derived right of residence in the EU of non-EU nationals and the right of a non-EU citizen to access social security benefits in an EU Member State.

A third-country national may, as the parent of a minor child who is an EU citizen, rely on a derived right of residence in the EU

On May 10, 2017, the ECJ ruled that a third-country national parent of an EU national child has a right of residence in an EU Member State if a refusal to grant the right of residence would result in the child having to leave the EU. The ruling is a consequence of a Venezuelan national with a Dutch child being refused the right of residence in the Netherlands. Without a right of residence, she was denied access to social assistance and child benefit. Seven other individuals, all third-country nationals, are in a similar situation: mothers with Dutch children from a Dutch national father.

The ECJ sought to determine whether, as mothers of a child who is an EU citizen, they acquired a right of residence under Article 20 TFEU. The Court determined that Article 50 TFEU precludes national measures that have the effect of depriving EU citizens of “the genuine enjoyment of the substance of the rights conferred by virtue of their status.” The Court ruled that the primary carer must be identified, as well as whether there is a relationship of dependency between the child and the third-country national. The best interests of the child must be accounted for, as well as the risks associated with separation from the third-country national parent.

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A non-EU national may benefit from a right of residence in the Member State in which his EU citizen family member resided before acquiring the nationality of that Member State and developing a family life there

An Advocate General of the ECJ ruled in May that an Algerian national married to a Spanish citizen has a derived right of residence as the spouse of an EEA national, despite the fact that his wife became a naturalised British citizen. He had been refused a right of residence by the UK government and served notice of a decision to remove him from the UK on the grounds that his wife, as a naturalised UK national, was no longer regarded as an EEA national and he had overstayed his visa in breach of immigration controls.

The Advocate General concluded that Article 21(1) TFEU grants EU citizens the right “to be able to continue the family life they have until then led with their spouse in the Member State whose nationality they have acquired” and that “the conditions for granting a derived right of residence to a third-country national, a member of the family of an EU citizen, should not, in principle, be stricter than those laid down by the directive.”

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A non-EU national with a work permit in a Member State can access social security benefits provided for nationals of that state

In June, the ECJ ruled that a non-EU national living in Italy with three minor children and a work permit valid for longer than six months is entitled to a benefit provided for households with at least three minor children and an income below a certain level. Her claim had been rejected on the grounds that the benefit was not available to non-EU nationals with a single work permit.

The Court, however, determined that the benefit was a social security benefit covered by the EU regulation on the coordination of social security systems and concluded that non-EU nationals “admitted to a Member State for the purpose of work in accordance with EU or national law must in particular enjoy equal treatment with nationals of that State.”

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