|Opportunities for third country nationals with Dutch spouse and child?|
In the much-discussed Ruiz Zambrano case the European Court of Justice decided that the Columbian parents of two Belgian children, living in Belgium, would be entitled to a EU right of residence because their children are nationals of a EU Member State. In this case both parents are third-country nationals, which means that neither is a national of a EU member state. The question is what the impact will be of this ruling. Will it have effect, for instance, on situations in which one of the parents is an EU national, for instance Dutch, but not the other parent?
The Dutch Minister for Immigration and Asylum believes the scope of the Zambrano ruling to be very limited, arguing that the case only has consequences if the circumstances are as exceptional as they are in the Ruiz Zambrano case. Several courts appear to agree with the Minister’s restrictive interpretation. The Court of Amsterdam, however, disagrees with the Minister, and holds the view that even in a situation in which a Dutch child has a Dutch parent and a third country parent, the third country national may have a EU right of residence. In the case in Amsterdam the third country parent had sole parental authority of and care for the Dutch child, while the child’s Dutch parent was merely under a maintenance obligation.
Moreover, both the Finnish and the German courts have submitted preliminary questions to the European Court of Justice about the scope and interpretation of the Ruiz Zambrano ruling. All these cases concern a third country national with a wife and a child who is a EU national; in the one case the third country national is not the child’s father, nor does he have authority over the child, while in the other case the third country national is both the child’s father and has parental authority.
As the highest court in this type of cases, the Administrative Law Division of the Council of State will review whether the third country national who has a Dutch wife and a Dutch child may rely on the Ruiz Zambrano ruling and whether he has a right of residence under EU law.
All in all it is still not easy to determine whether third country nationals with a Dutch spouse and child have a right of residence under EU law. Please contact us for expert advice if you have any questions on the subject.