Published 26-09-2017

Changed procedure in cases on residence permits to parents of Danish children

In May, the European Court of Justice delivered a decision in a case on residence permit to the parent of a minor child who is an EU citizen. The Ministry of Immigration and Integration has completed its review of the impact of the decision on Danish legislation.

The Dansih Immigration Service is announcing a change of procedure as the result of a decision delivered on 10 May by the Court of Justice of the European Union (ECJ) in the case H.C. Chavez-Vilchez and Others v Raad van bestuur van de Sociale verzekeringsbank and Others. The Danish Immigration Service will now consider whether certain cases should be re-opened. The cases deal with applications for residence permit to a third-country national who is the parent of a minor child who is an EU citizen.

According to the ECJ decision, third-country nationals can qualify for residency, if denying them a residence permit would compel the child, an EU citizen, to leave the EU. The decision thus entails that the rights of the child to remain in the EU and enjoy their rights as an EU citizenmay require that a residence permit is granted to the third-country-national parent.

The ECJ decision lays out which factors immigration authorities need to take into consideration when evaluating these types of cases.

Rights of EU children

According to the ECJ the decisive factor in the specific case was, which parent was the de facto caregiver, and whether there was a “relationship of dependency” between the child and the third-country-national parent. If such a relationship exists, and if the third-country-national parent is compelled to leave the territory of the EU, the child would, in effect, also be compelled to leave the EU. In such cases, residency can be granted to the third-country-national parent.

The decision clarifies that a relationship of dependency between the child and the third-country-national parent – the basis for the third-country national’s residency – is not influenced by the Danish parent’s actual ability and willingness to assume sole responsibility for the primary daily care of the child. The child’s relationship to the third-country-national parent must be assessed.

When making a decision in such cases, immigration authorities must take the best interests of the child into account and consider all specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his/her emotional ties both to the EU-citizen parent and to the third-country-national parent, and the risks separation from the latter might pose to the child’s welfare.

Impact on closed cases Cases can be re-opened if:

  • the third-country-national’s application for residency as the parent of a minor child who is a Danish citizen was rejected. The third-country-national parent needs to document that, at the time of requesting residency, he/she was in a situation that would have qualified for residency had the procedure established by the Chavez-Vilchez case applied. The third-country-national parent must still find himself/herself in a situation qualifying for residency
  • sections 9 c (1) or 9 (2) (4) of the Danish Alien Act were given as the grounds for rejecting the third-country-parent’s application, and the decision was made after 1 November 1993
  • the child is under the age of 18 at the time the Danish Immigration Service delivers its decision in the re-opened case

In certain situations, the Danish Immigration Service is obliged to initiate a review of cases to determine whether the ECJ ruling should result in their re-opening. Whether the Danish Immigration Service is obliged to do so depends on whether the cases were closed before or after the ECJ’s decision in the Zambrano case, on 8 March 2011.

Cases the Danish Immigration Service will review on its own for possible re-openings

The Danish Immigration Service is required to initiate a review of cases that were closed after 2011 Zambrano decision. This review is already underway. If the Danish Immigration Service finds that such cases exist, it will, to the extent possible, contact the individuals involved to inform them of how to proceed.

Individuals who were involved in cases that were closed after 2011 do not need to contact the Danish Immigration Service at this time. If the Danish Immigration Service is unable to contact everyone whose cases qualify to be re-opened, it will make an announcement on newtodenmark.dk requesting them to contact the Danish Immigration Service.

Cases the Danish Immigration Service will not review on its own for possible re-openings

The Danish Immigration Service will not carry out a review of cases that were closed before the 2011 Zambrano decision, unless requested to do so. Individuals involved in such cases who believe their case may qualify for re-opening should contact the Danish Immigration Service.

Further information

Read the full Court of Justice of the European Court decision

Read the briefing from the Parliament’s committee for Immigration and Integration of 19 September 2017 on the processing of specific cases of derived right of residence involving third-country-national parents of underage Danish citizens in connection with ECJ ruling C-133/15 – Chavez-Vilchez (in Danish only)

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