Last May the Court of Justice gave a preliminary ruling on the refusal to third-country nationals, mothers of minor children, of social assistance and child benefit on the ground of lack of right of residence. The Court in the case of Chavez-Vilchez and Others sought to ascertain whether mothers of Union citizens derived a right of residence.

The Court quoted case-law specifying that if the children would be obliged to leave the territory of the European Union if the right of residence were refused to their mothers, then such mothers would acquire a right of residence derived from the right of residence of their children who are Union citizens. However in practice such case-law is interpreted restrictively and is applicable only in situations where the father is not, on the basis of objective criteria, in a position to care for the child because he is for example in prison, confined to an institution, hospitalised or even dead.

The ECJ outlined the importance of determining which of the parents is the primary care-giver and whether there is a relationship of dependency between the child and the third-country national parent and the fact that the other parent is able and willing to assume the sole responsibility for the primary day-to-day care of the child which is a relevant factor but not in itself sufficient ground for conclusion that there is not between the third-country national and the child such a relationship of dependency.

The Court added that although a Member State can provide that the right of residence in its territory of a third-country national is subject to such third-country national to prove that a refusal of a right of residence would deprive the child of the genuine enjoyment of the substance of the rights pertaining to the child’s status as a Union citizen, it is the competent authorities of the Member State concerned to undertake, on the basis of the evidence provided by the third-country national, the necessary enquiries in order to be able to assess, in the light of all the specific circumstances, whether a refusal would have such consequences.

This judgement gives hope to the thousands of third-country nationals dispersed in EU Member States and notably to those who have settled in Malta. Iuris provides advice and assistance through its Citizenship, Residence and Relocation Department and its team of lawyers headed by Simon Galea Testaferrata, Sarah Galea, Romina Bartolo and Lena Sammut.

Contributed by: Dr. Romina Bartolo – IURIS