Residence Rights for Caring Parents who are also Victims of Domestic Violence

Abstract:

Traditionally, parents determine their children’s right to reside in a host-State. This means that a child’s right to remain in a host-State is intrinsically linked to the presence of those parents in their host-State. This changed for the EU Member States with the Court of Justice’s ruling in the Baumbast case and was extended in that Court’s Chen ruling. In these cases the Court of Justice, as a first step, acknowledged children as independent bearers of residence rights. To ensure the effectiveness of this right to remain, the Court of Justice, as a second step, reasoned that a third-country national parent also enjoys a right to remain in that Member State if that parent is their primary carer.

These rulings play a crucial role in the Court of Justice’s recent decision in the NA case. Although Article 13(2) of the Citizens Directive provides for a right to remain as a victim of domestic violence, it is not in this capacity but rather her capacity of the primary carer of two young EU-citizens that ensures her a right to remain in her host-Member State after the departure of her EU-citizen spouse.This contribution seeks an alternative reading of Article 13(2)(c) of the Citizens Directive to that offered by the Court of Justice in the NA case. Arguments are found in that Directive’s objectives, drafting history and effectiveness; benchmarks normally used by the Court of Justice in its case law when clarifying the scope of EU free movement rights, as well as that Court’s case law on the declaratory nature of those rights.