Deriving Freedom of Movement from one’s Child
When is the non-European parent of a child having European citizenship entitled to enjoy the freedom of movement? Does the child have to live in the target country, or is it just the parental relationship that grants this right relevance? The Federal Administrative Court in Leipzig clarified this intriguing question in its judgment of 23 September 2020 (re 1 C 27.19).
Kosovar Father of a Hungarian Child Claimed Derived Freedom of Movement
The plaintiff, a Kosovar citizen, is the father of a minor child born, who has Hungarian citizenship through his mother with whom the plaintiff lives. Both parents have custody over the child and are not married. After the child's birth, the plaintiff unsuccessfully applied for a residence card as a family member of a Union citizen child, documenting the freedom of movement in accordance with §5 I FreizügG.
VGH referred Plaintiff to Residence Permit on Humanitarian Reasons
This court denies the freedom of movement because a derived right of residence in favour of the third-country national family member of a citizen of the Union exists only if necessary. Such necessity would exist if the non-European could not apply for a national residence permit. In this case, such possibility existed – in the court’s understanding. It believed that the father could have applied for a permit for humanitarian reasons (§25 V AufenthG). Although the plaintiff had never applied for such a permit, this remains true. Immigration authorities also agreed to grant it during the proceedings. In the meantime, the plaintiff married the child's mother, and a residence card was issued to him. Now, he is only seeking a court ruling that he has been granted a right of residence derived from his child.
BVerwG Collects Decision of OVG
The Federal Administrative Court referred the case back to the Administrative Court for a new decision. Its overruling opinion is that art. 21 TFEU protects the rights of Union citizens to freedom of movement. It also provides family members of a Union citizen entitled to freedom of movement with a derived right of residence, even in certain cases that are not directly covered by Directive 2004/38/EC (Union Citizenship Directive).
Deriving Right of freedom of Movement when Sponsor has his own Right
If a third-country national invokes a right of residence derived from the freedom of movement for Union citizens to lead a normal family life in a second EU Member State, this sponsor himself must be personally entitled by his own virtues. A right to freedom of movement of the child derived solely from the mother was not sufficient for this purpose. The child’s own right of residence exists only if sufficient means of subsistence are available (Article 7.1(b) of the Union Citizenship Directive).
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Freedom of Movement: Third-country spouses of Germans after Marrying in Denmark