V v Staatssecretaris van Justitie en Veiligheid (C-147/24)

Contents

Judgment of the Court (Grand Chamber)4 June 2026^note(Reference for a preliminary ruling — Article 20 TFEU — Citizenship of the Union — Directive 2008/115/EC — Return of illegally staying third-country nationals — Article 5(a) and (b) — Obligation to take account of the best interests of the child and of family life — Article 6(2) — Decision of the competent authority of the host Member State refusing to grant a derived right of residence on its territory to the third-country national, who is the parent of a minor child who is a Union citizen, and ordering that third-country national to go immediately to another Member State — Interference with the exercise by a Union citizen of his or her right of free movement and residence within the territory of the Member States — Child having never resided in a Member State other than that of which he or she is a national — Derived right of residence of the parent, who is a third-country national, in the Member State of which the child is a national and in which that child resides — Right of residence of that parent in another Member State — Article 7 of the Charter of Fundamental Rights of the European Union — Right to respect for private and family life — Article 24(2) and (3) of the Charter of Fundamental Rights — Best interests of the child)In Case C‑147/24 [Safi],^noteREQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank Den Haag (District Court, The Hague, Netherlands), made by decision of 26 February 2024, received at the Court on 26 February 2024, in the proceedingsVvStaatssecretaris van Justitie en Veiligheid,THE COURT (Grand Chamber),composed of K. Lenaerts, President, T. von Danwitz, Vice-President, K. Jürimäe, C. Lycourgos, I. Jarukaitis, I. Ziemele, J. Passer, O. Spineanu-Matei and F. Schalin, Presidents of Chambers, E. Regan (Rapporteur), N. Piçarra, A. Kumin, N. Jääskinen, B. Smulders and S. Gervasoni, Judges,Advocate General: T. Ćapeta,Registrar: A. Lamote, Administrator,having regard to the written procedure and further to the hearing on 25 March 2025,after considering the observations submitted on behalf of:– V, by P. Krämer-Ograjensek and A.C.M. Nederveen, advocaten,– the Netherlands Government, by M.K. Bulterman and J.M. Hoogveld, acting as Agents,– the Danish Government, by M.P. Brøchner Jespersen, D. Elkan, C.A.-S. Maertens and J. Sandvik Loft, acting as Agents,– the European Commission, by N. Cambien, A. Katsimerou and E. Montaguti, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 4 September 2025,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 20 TFEU and Article 5(a) and (b) and Article 6(2) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).

2The request has been made in proceedings between V, a third-country national, and the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) (‘the State Secretary’) concerning the latter’s refusal to grant V a derived right of residence in the Netherlands, where she lives with her minor child who has the nationality of that Member State.

Legal context

European Union law

The FEU Treaty

3Article 20 TFEU provides:1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.2.Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:(a) the right to move and reside freely within the territory of the Member States;…These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.’

The Charter

4Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’), entitled ‘Respect for private and family life’, is worded as follows:‘Everyone has the right to respect for his or her private and family life, home and communications.’

5Article 24 of the Charter, entitled ‘The rights of the child’, provides, in paragraphs 2 and 3 thereof:2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.’

Directive 2004/38/EC

6Article 7 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigendum OJ 2004 L 229, p. 35), entitled ‘Right of residence for more than three months’, provides, in paragraph 1 thereof:‘All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:(a) are workers or self-employed persons in the host Member State; or(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or(c)– are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and– have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).’

Directive 2008/115

7Article 5 of Directive 2008/115, entitled ‘Non-refoulement, best interests of the child, family life and state of health’, provides:‘When implementing this Directive, Member States shall take due account of:(a) the best interests of the child;(b) family life;…’

8Article 6 of that directive, entitled ‘Return decision’, is worded as follows in paragraphs 1 and 2 thereof:1. Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5.2. Third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately. In the event of non-compliance by the third-country national concerned with this requirement, or where the third-country national’s immediate departure is required for reasons of public policy or national security, paragraph 1 shall apply.’

Netherlands law

9Article 8 of the Vreemdelingenwet 2000 (Law on Foreign Nationals of 2000), of 23 November 2000 (Stb. 2000, No 495), in the version applicable to the dispute in the main proceedings, provides that a foreign national is lawfully resident in the Netherlands only:‘…e. as [an EU] national, as long as the national concerned resides in the Netherlands pursuant to a regulation adopted under the [TFEU] or the Agreement on the European Economic Area;…’

10Paragraph B10/ 2.2 of the Vreemdelingencirculaire 2000 (Circular of 2000 on Foreign Nationals), of 2 March 2001 (Stcrt. 2001, No 64), in the version applicable to the dispute in the main proceedings, provides, inter alia:‘…A foreign national is lawfully resident under Article 8, introductory part and point (e), of the Law on Foreign Nationals of 2000 if all the following conditions are met:a. the foreign national must make a plausible case with regard to his or her identity and nationality by presenting a border crossing document or a valid identity card. If the foreign national cannot do so, he or she must prove without ambiguity his or her identity and nationality by other means;b. the foreign national has a minor child (that is to say, a child of under 18 years of age) who holds Netherlands nationality;c. the foreign national, whether jointly with the other parent or not, performs tasks relating to the care of the minor child; andd. there is such a relationship of dependency between the foreign national and the child that the child would be forced to leave the territory of the European Union if the foreign national were refused a right of residence.…The [Immigratie- en Naturalisatiedienst (Immigration and Naturalisation Office, Netherlands)] shall provide to the foreign national who intends to reside as a parent caring for a minor child of Netherlands nationality, immediately after the introduction of the application for assessment in the light of EU Law, the residence permit sticker for [EU] nationals (Annex 7h [of the Voorschrift Vreemdelingen (Regulation of 2000 on Foreign Nationals), of 18 December 2000 (Stcrt. 2001, No 10; “the VV”)]) with the note that the family member is authorised to work.In the following cases, no residence permit sticker for [EU] nationals shall be issued (Annex 7h [of the VV]), but a general residence permit sticker shall be issued instead (Annex 7g [of the VV]):…The foreign national has a right of residence in another Member State of the [European Union];…’

The dispute in the main proceedings and the questions referred for a preliminary ruling

11The applicant in the main proceedings, V, was born in Morocco in 1979 and holds Moroccan nationality. From 1999 to 2014, she lived in Spain on the basis of a right of residence granted, pursuant to Spanish law, on account of her economic activity in that Member State. On 23 September 2014, she was married in Morocco. Since her marriage, she has lived with her spouse – who was born in the Netherlands in 1975 and who holds Moroccan and Dutch nationality – in the Netherlands, with the exception of some short holidays in Morocco and in Spain. Their marriage was entered in the civil status registers of the Netherlands municipality in which they reside. However, the applicant in the main proceedings does not hold a residence permit for the Netherlands.

12On 6 January 2015, a son, who holds Netherlands nationality exclusively, was born to the couple, and who the couple care for together.

13That child has speech and language difficulties and did not speak until he was five years old. Since he suffers from delayed speech development, he attends an educational institution for pupils who require specific support that the general education system is unable to provide. He also uses a customised transport service to travel between his home and that institution. To date, he has never resided in a Member State other than that of which he is a national.

14The spouse of the applicant in the main proceedings does not receive any occupational income on account of his state of health and, for that reason, is dispensed in part from the obligation to work. On the other hand, he receives social assistance benefits.

15On 13 November 2020, the applicant in the main proceedings made an application in the Netherlands for a derived right of residence under Article 20 TFEU in order to stay with her minor son. In support of that application, she submitted a document attesting that she has a right of residence in Spain.

16On 11 November 2021, the State Secretary rejected that application, finding, inter alia, that the applicant in the main proceedings is not entitled to a derived right of residence under Article 20 TFEU given that she has a right of residence in Spain. In his assessment, he examined of his own motion whether that applicant should be granted a right of residence on the basis of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. He noted that the applicant, her spouse and their son had a family life in the Netherlands, and that the applicant’s private life was there. However, he found, in essence, that the general interest of the Netherlands authorities outweighed the personal interests of that applicant, her Netherlands spouse and their son. Thus, the State Secretary found, first, that a balancing of the interests resulted in a finding unfavourable to the applicant in the main proceedings and, secondly, that the rejection of the latter’s application for a right of residence in the Netherlands resulted in her being deprived of lawful residence in that Member State. Consequently, he ordered that applicant to go to Spain immediately, stating that, were she not to comply with that order, a return decision would be adopted against her.

17Following the rejection of her application seeking a derived right of residence in the Netherlands under Article 20 TFEU, the applicant in the main proceedings requested the Spanish authorities for an attestation that she had renounced her right of residence in the latter Member State. After researching the issue, the State Secretary found that the applicant in the main proceedings still has a right of residence in Spain, which constitutes a permanent right of residence under Spanish legislation and is based on being engaged in an occupation.

18By decision of 20 June 2022, the State Secretary declared the complaint brought by the applicant in the main proceedings against that rejection to be manifestly unfounded.

19The applicant brought an action against that dismissal before the rechtbank Den Haag (District Court, The Hague, Netherlands), which is the referring court.

20The applicant in the main proceedings asserts before that court that she has a derived right of residence in the Netherlands under Article 20 TFEU since her minor son is dependent on her. The State Secretary disputes the existence of such a right on the ground that she already has a right of residence in Spain. In his view, since the minor child could accompany his mother to that Member State, the refusal to grant her a derived right of residence in the Netherlands on the basis of Article 20 TFEU does not result in compelling that child to leave the territory of the European Union as a whole.

21Therefore, the referring court raises the issue of whether, first, the application made by the applicant in the main proceedings for a derived right of residence in the Netherlands under Article 20 TFEU can be rejected on the sole ground that she has a right of residence in another Member State. In that regard, the referring court observes that, admittedly, the existence of a right of residence in Spain means that, in the event of a refusal of a derived right of residence in the Netherlands, neither the applicant in the main proceedings nor her minor son would be required to leave the territory of the European Union as a whole. However, given the relationship of dependency between that child and his mother, the child would be compelled to exercise his right of free movement and residence within the territory of the Member States in order to accompany his mother to Spain. Accordingly, that court raises the issue of if, in assessing whether the mother has a derived right of residence under Article 20 TFEU, it is necessary to make an in-depth examination of the best interests of the child and the right to family life. It points out, in that context, that the State Secretary neither assessed whether there is a relationship of dependency between the applicant in the main proceedings and her minor child nor examined whether their family life could continue in Spain.

22Secondly, the referring court has doubts as to whether the obligation, provided for in Article 5(a) and (b) of Directive 2008/115, according to which Member States must take due account, when implementing that directive, of the best interests of the child and of family life, has the same scope and extent when a Member State orders a third-country national staying illegally in its territory to go immediately to the territory of another Member State under Article 6(2) of that directive as when a Member State adopts a return decision under Article 6(1) of that directive. If so, that court raises the issue of whether the Member States are under a similar obligation when they are seised of an application for a derived right of residence under Article 20 TFEU, in the light also of the right of respect for family life, laid down in Article 7 of the Charter, and the rights of the child, guaranteed in Article 24(2) and (3) of the Charter.

23In those circumstances, the rechtbank Den Haag (District Court, The Hague) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Is Article 20 TFEU to be interpreted as meaning that it is not excluded that a third-country parent must be granted a derived right of residence in the Member State of which his or her minor child is a national and where his or her child resides without having made use of his or her citizenship rights, while that third-country parent has a right of residence in another Member State?If it is not excluded that a third-country parent must be granted a derived right of residence in the Member State of which his or her minor child is a national and where his or her child resides without having made use of his or her citizenship rights, while that third-country parent has a right of residence in another Member State:(2) Having regard to Article 5(a) and (b) of Directive 2008/115 and Article 6(2) of [that directive], does it follow from Article 20 TFEU, where a relationship of dependency exists, such as that which provides grounds for the grant of a derived right of residence under Article 20 TFEU, that there is an obligation on the decision-making authority to ascertain whether the exercise of the right of free movement and residence is in the best interests of the child, and whether the exercise of family life can continue, before instructing the third-country parent to move immediately to the Member State where he or she holds a residence permit or other authorisation offering a right to stay, and should these factors be taken into account when assessing the application for a derived right of residence?’

Consideration of the questions referred

24As a preliminary point, it should be recalled that, according to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgments of 29 November 1978, Redmond, 83/78, EU:C:1978:214; paragraph 26, and of 2 December 2025, Russmedia Digital and Inform Media Press, C‑492/23, EU:C:2025:935, paragraph 44).

25In the present case, the referring court raises the issue of the interpretation both of Article 20 TFEU, and of Article 5(a) and (b) and Article 6(2) of Directive 2008/115. Its questions with regard to that directive arise from the fact that, after rejecting the application made by the applicant in the main proceedings for a derived right of residence under Article 20 TFEU in order to stay in the Netherlands with her minor son, who holds Netherlands nationality, the State Secretary found her residence in the Netherlands to be illegal and ordered her, under Article 6(2) of that directive, to go to Spain immediately.

26It follows from the latter provision that a third-country national staying illegally on the territory of a Member State whilst having a right of residence in another Member State should be allowed to return to the latter, rather than be issued a return decision from the outset, unless public policy or national security so requires (see, to that effect, judgments of 16 January 2018, E, C‑240/17, EU:C:2018:8, paragraph 46, and of 24 February 2021, M and Others (Transfer to a Member State), C‑673/19, EU:C:2021:127, paragraph 35).

27In that context, the referring court asks whether, for the purposes of resolving the dispute in the main proceedings, Article 5(a) and (b) of Directive 2008/115 is relevant, under which, when implementing that directive, Member States are to take due account of the best interests of the child and family life.

28That being said, it is apparent from a reading of the request for a preliminary ruling as a whole that, although the referring court expressly refers to the obligation arising from Article 5(a) and (b) of Directive 2008/115, it is ultimately seeking clarification as to whether the applicant in the main proceedings is prevented from obtaining, in the Netherlands, a derived right of residence under Article 20 TFEU on the sole ground that she already has a right of residence in Spain. In addition, that court seeks to ascertain whether, in the assessment of that applicant’s application for the grant of such a derived right of residence, the State Secretary is required, first, to ascertain whether the family life which the minor child, a Union citizen, maintains with both his parents may continue in Spain and, secondly, to take into account the best interests of that child.

29It is settled case-law that the common standards and procedures established by that directive concern only the adoption of return decisions and the implementation of those decisions, without, however, laying down rules concerning either how to attribute a right of residence to third-country nationals (see, to that effect, judgment of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 84 and the case-law cited).

30However, as the referring court has also observed, the right to respect for family life is enshrined in Article 7 of the Charter, which must be read in conjunction with Article 24 thereof, relating to the rights of the child. In particular, Article 24(2) and (3) provide, respectively, for the obligation to take account of the best interests of the child and for the right of every child to maintain on a regular basis a personal relationship and direct contact with both of his or her parents, unless that is contrary to his or her interests.

31In those circumstances, it must be held that, by its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 20 TFEU, read in the light of Article 7 and Article 24(2) and (3) of the Charter, must be interpreted as precluding the adoption, by the competent authority of the host Member State, of a decision refusing to grant a derived right of residence on its territory to a third-country national who is a parent of a minor child, that child being a Union citizen who has never resided in a Member State other than that of which he or she is a national, on the ground that that third-country national has a right of residence in another Member State, where that authority has not previously verified whether the family life which that child leads with both his or her parents, on whom he or she is dependent, could continue in that other Member State and whether the relocation of that child to the latter Member State would be contrary to his or her best interests.

32It must be recalled in that regard that, according to settled case-law, Article 20 TFEU confers on every individual who is a national of a Member State citizenship of the Union, which constitutes the fundamental status of nationals of the Member States (see, to that effect, judgments of 20 September 2001, Grzelczyk, C‑184/99, EU:C:2001:458, paragraph 31; of 29 April 2025, Commission v Malta (Citizenship by investment), C‑181/23, EU:C:2025:283, paragraph 92; and of 25 November 2025, Wojewoda Mazowiecki, C‑713/23, EU:C:2025:917, paragraph 40).

33Citizenship of the Union confers on each Union citizen a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the FEU Treaty and the measures adopted for their implementation (judgments of 7 October 2010, Lassal, C‑162/09, EU:C:2010:592, paragraph 29; of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 70; and of 22 June 2023, Staatssecretaris van Justitie en Veiligheid (Thai mother of a Dutch minor child), C‑459/20, EU:C:2023:499, paragraph 21).

34The Court has held that Article 20 TFEU precludes national measures, including decisions refusing a right of residence to the family members of a Union citizen, which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status (judgments of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraph 42; of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 45; and of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 61).

35On the other hand, the Treaty provisions on citizenship of the Union do not confer any autonomous right on third-country nationals. Any rights conferred on third-country nationals are not autonomous rights of those nationals but rights derived from those enjoyed by a Union citizen. The purpose and justification of those derived rights are based on the fact that a refusal to allow them would be such as to interfere, in particular, with a Union citizen’s freedom of movement and residence (see, to that effect, judgments of 8 November 2012, Iida, C‑40/11, EU:C:2012:691, paragraphs 66 to 68; of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 62; and of 27 February 2020, Subdelegación del Gobierno en Ciudad Real (Spouse of a Union citizen), C‑836/18, EU:C:2020:119, paragraph 38).

36In the present case, it is common ground that the minor child of the applicant in the main proceedings may, as a national of a Member State, rely on the rights pertaining to his status as a Union citizen conferred on him by Article 20 TFEU, including against the Member State of which he is a national (see, to that effect, judgment of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 60 and the case-law cited).

37Furthermore, it is apparent from the order for reference that the applicant in the main proceedings and her spouse, who, like their child, holds Netherlands nationality, both care for that child and live together as a family in the Netherlands. That child has thus maintained, without interruption since his birth, personal relationships and direct contact with both his parents.

38It is also apparent from that order that the State Secretary refused to grant a derived right of residence in the Netherlands to the applicant in the main proceedings, the mother of that child, on the ground that she has a right of residence in Spain under the legislation of the latter Member State. Consequently, he ordered the applicant in the main proceedings to go to the territory of that Member State. In addition, he took the view that, since the minor child, a Union citizen who has never resided in a Member State other than that of which he or she is a national, is able to accompany his mother to Spain, the refusal to grant her a derived right of residence in the Netherlands under Article 20 TFEU does not have the effect of compelling that child to leave the EU as a whole.

39Although the referring court relied, in its questions, on the premiss that the applicant in the main proceedings does in fact have a right of residence in Spain, the applicant submitted before the Court, both in her written observations and at the hearing, that she has in the meantime renounced that right of residence and, therefore, no longer has any right of residence in that Member State.

40It is ultimately for the referring court to assess whether the applicant in the main proceedings still has a right of residence in Spain. However, in order to provide an answer which will, in all circumstances, be useful to that court in resolving the dispute before it, the Court will also consider the scenario in which there is no such right of residence.

The scenario in which the applicant in the main proceedings no longer has a right of residence in Spain

41It must be recalled in this connection that there are very specific situations in which, despite the fact that secondary legislation on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his or her freedom of movement and of residence, a derived right of residence under Article 20 TFEU must be granted to a third-country national who is a family member of that Union citizen, since the effectiveness of Union citizenship would otherwise be undermined if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the European Union as a whole, thus depriving him or her of the genuine enjoyment of the substance of the rights conferred by virtue of that status (see, to that effect, judgments of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 63; of 8 May 2018, K.A. and Others (Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 51; and of 27 February 2020, Subdelegación del Gobierno en Ciudad Real (Spouse of a Union citizen), C‑836/18, EU:C:2020:119, paragraph 39 and the case-law cited).

42The situations referred to in the preceding paragraph have the common feature that, although they are governed by legislation which falls, a priori, within the competence of the Member States, namely legislation on the right of entry and residence of third-country nationals outside the scope of provisions of EU secondary legislation, which provide for the grant of such a right under certain conditions, those situations nonetheless have an intrinsic connection with the freedom of movement and residence of a Union citizen, which precludes the right of entry and residence from being refused to those nationals in the Member State of residence of that citizen, in order to avoid interference with that freedom (see, to that effect, judgments of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 64 and the case-law cited, and of 22 June 2023, Staatssecretaris van Justitie en Veiligheid (Thai mother of a Dutch minor child), C‑459/20, EU:C:2023:499, paragraph 25).

43However, a refusal to grant a right of residence to a third-country national is liable to undermine the effectiveness of Union citizenship only if there exists, between that third-country national and the Union citizen who is a family member, such a relationship of dependency that it would lead to the Union citizen being compelled to accompany the third-country national concerned and to leave the territory of the European Union as a whole (judgments of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraphs 43 to 45; of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 69; and of 22 June 2023, Staatssecretaris van Justitie en Veiligheid (Thai mother of a Dutch minor child), C‑459/20, EU:C:2023:499, paragraph 26 and the case-law cited).

44In that regard, it should be noted that the assessment of the existence of a relationship of dependency between the third-country national concerned and his or her minor child, a Union citizen, for the purposes of the possible recognition of a derived right of residence under Article 20 TFEU, must take account of all the circumstances of the case and, in particular, of the question of custody of that child and of whether the child is legally, financially or emotionally dependant on the third-country national parent. The age of the child, the child’s physical and emotional development, the extent of his or her emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium may also constitute relevant factors (see, to that effect, judgments of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraphs 70 and 71; of 5 May 2022, Subdelegación del Gobierno en Toledo (Residence of a family member – Insufficient resources), C‑451/19 and C‑532/19, EU:C:2022:354, paragraph 67; and of 7 September 2022, Staatssecretaris van Justitie en Veiligheid (Nature of the right of residence under Article 20 TFEU), C‑624/20, EU:C:2022:639, paragraphs 38 and 39).

45Thus, for the purposes of that assessment, the fact that the other parent, a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national (see, to that effect, judgments of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 71, and of 5 May 2022, Subdelegación del Gobierno en Toledo (Residence of a family member – Insufficient resources), C‑451/19 and C‑532/19, EU:C:2022:354, paragraph 67).

46In that assessment, the competent authorities must take account of the right to respect for family life, as set out in Article 7 of the Charter, read in conjunction with the obligation to take into consideration the best interests of the child, as a primary consideration in all actions relating to children, recognised in Article 24(2) of that charter, and the right of that child to maintain on a regular basis personal relations and direct contact with both parents, enshrined in Article 24(3) of that charter (see, to that effect, judgments of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 70, and of 5 May 2022, Subdelegación del Gobierno en Toledo (Residence of a family member – Insufficient resources), C‑451/19 and C‑532/19, EU:C:2022:354, paragraph 66).

47In that regard, where the Union citizen minor lives with both parents on a stable basis and where, therefore, the care of that child and the legal, emotional and financial responsibility in relation to that child are shared on a daily basis by those two parents, there is a rebuttable presumption that there is a relationship of dependency between that Union citizen minor and his or her parent who is a third-country national, irrespective of the fact that the other parent of that child has, as a national of the Member State in which that family is established, an unconditional right to remain on the territory of that Member State (judgment of 5 May 2022, Subdelegación del Gobierno en Toledo (Residence of a family member – Insufficient resources), C‑451/19 and C‑532/19, EU:C:2022:354, paragraph 69).

48In the present case, according to the referring court, there is a relationship of dependency between the applicant in the main proceedings and her minor son, a Union citizen, within the meaning of the case-law set out in paragraphs 43 to 47 above.

49Therefore, were it to be found that the applicant in the main proceedings no longer has a right of residence in Spain, it must be concluded that, in the light of that relationship of dependency between her and her minor child, who is a Union citizen, the latter would be compelled to accompany his mother and, therefore, to leave the territory of the European Union, taken as a whole, if she were refused a derived right of residence in the Netherlands on the basis of Article 20 TFEU. As is apparent from the case-law cited in paragraph 41 above, such a departure from the territory of the European Union would have the effect of depriving that child of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen and would undermine the effectiveness of that status. In such a situation, a derived right of residence under Article 20 TFEU should therefore be granted to his mother.

The scenario in which the applicant in the main proceedings still has a right of residence in Spain

50The fact, even if it were established, that the applicant in the main proceedings still has a right of residence in Spain cannot, in itself, rule out the possibility that that applicant may enjoy a derived right of residence in the Netherlands under Article 20 TFEU.

51It is apparent from the order for reference that, having regard to the relationship of dependency between the applicant in the main proceedings and her minor child, a Union citizen, that child would, in fact, be compelled to accompany his mother to Spain and, therefore, to leave the territory of the Netherlands of which he is a national, if she were to be refused a derived right of residence in that Member State on the basis of Article 20 TFEU.

52As the referring court explains, compelling such a relocation of the minor child, a Union citizen, to Spain would be liable to infringe some of his fundamental rights, in particular the right to respect for family life and the rights of the child, guaranteed in Article 7 and Article 24(2) and (3) of the Charter respectively.

53It should be noted in that regard that, pursuant to Article 51(1) of the Charter, the provisions of that charter are addressed to the Member States only when they are implementing EU law.

54That is the case in a situation such as that referred to in paragraph 51 above. Subject to compliance with the conditions and limits laid down by the relevant secondary EU legislation, the rights stemming from the citizenship of the Union enjoyed by each national of a Member State include, according to Article 20(2)(a) TFEU, the right to move and reside freely within the territory of the Member States. In a situation in which a Union citizen is, de facto, compelled to leave his or her Member State of residence, of which he is a national, in order to settle in another Member State, there is necessarily an interference in the exercise of that right.

55It follows that the decision rejecting an application for the grant of a derived right of residence under Article 20 TFEU in a situation such as that referred to in paragraph 51 above constitutes an implementation of EU law, within the meaning of Article 51(1) of the Charter, and that the competent national authorities, when adopting such a decision, cannot dispense with an assessment of compliance with the fundamental rights as guaranteed by that charter.

56So far as concerns, in the first place, the right to respect for family life enshrined in Article 7 of the Charter, that article must be read in conjunction with Article 24(3) thereof, according to which every child has the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

57It is apparent from the information provided by the referring court that, in the present case, the minor child, a Union citizen, is dependent on both his third-country national parent and his Union citizen parent. However, according to that information, the State Secretary rejected the application for a derived right of residence submitted by the applicant in the main proceedings under Article 20 TFEU without first verifying whether the family life which that child leads with both those parents in the Netherlands could be continued in Spain.

58In particular, the referring court points out that the State Secretary did not verify the nature of the right of residence enjoyed by the applicant in the main proceedings in Spain or any conditions imposed by the Spanish authorities on her spouse and their minor child, who is a Union citizen, in order to be able to reside, as the case may be, on a long term basis together in that Member State. In that context, it notes that the applicant in the main proceedings stated that she is not engaged in an occupation and that her spouse is not in a position to receive income, so that it is not certain that the spouse satisfies the conditions required in order to enjoy a right of long-term residence in Spain under EU law, in particular under Article 7(1) of Directive 2004/38.

59Thus, that court observes that, since the minor child would be compelled, owing to the intensity of the relationship of dependency with his mother, to accompany her to Spain in the event of a refusal to grant the applicant in the main proceedings a derived right of residence in the Netherlands on the basis of Article 20 TFEU, there is a genuine risk that that child will be separated from his father, in so far as the latter might find it impossible to obtain the right to reside on a long-term basis in Spanish territory and thus to continue on that territory the family life currently being led in the Netherlands.

60In those circumstances, and subject to verification which is ultimately a matter for the referring court, it must be held that the decision refusing to grant a derived right of residence to the mother of the minor child, that child being a Union citizen, would harm the family unit in that it would deprive that child of the opportunity which he has enjoyed since birth to maintain regular personal relations and regular contact with both his parents, in breach of Article 7 of the Charter, read in conjunction with Article 24(3) thereof. If such a breach were to be found, a derived right of residence in the Netherlands would then have to be granted to the mother of that child under Article 20 TFEU.

61In the second place, as regards Article 24(2) of the Charter, according to which, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration, the referring court states that, according to the applicant in the main proceedings, compelling the relocation of her child to Spain would be contrary to his best interests.

62That court points out in that regard that, in the present case, the child concerned, who was 10 years old at the time when the present request for a preliminary ruling was made, does not speak Spanish but Dutch. In addition, that child did not speak until he was five years old and has speech and language difficulties, and is therefore receiving specialised education in the Netherlands for pupils in need of specific support which the general education system is unable to provide.

63Subject to verification which is ultimately a matter for the referring court to carry out, it appears that such circumstances are, at the very least, such as to demonstrate that it is in the best interests of the minor child concerned that he continues to reside in the Netherlands and that, consequently, compelling his relocation to Spain would, in fact, be contrary to those interests.

64Were it to be established that such is indeed the case, a derived right of residence would therefore have to be granted to his mother under Article 20 TFEU, read in the light of Article 24(2) of the Charter.

65Having regard to all the foregoing considerations, the answer to the questions referred is that Article 20 TFEU, read in the light of Article 7 and Article 24(2) and (3) of the Charter, must be interpreted as– precluding the adoption, by the competent authority of the host Member State, of a decision refusing to grant a derived right of residence on its territory to a third-country national who is a parent of a minor child, that child being a Union citizen who has never resided in a Member State other than that of which he or she is a national, on the ground that that third-country national has a right of residence in another Member State, where that authority has not previously verified whether the family life which that child leads with both his or her parents, on whom he or she is dependent, could continue in that other Member State and whether the relocation of that child to the latter Member State would be contrary to his or her best interests;– requiring that third-country national to be granted a derived right of residence on the territory of the Member State of which that child is a national and in which he or she resides with both his or her parents, where either the family life which that child leads with both his or her parents, on whom he or she is dependent, could not continue in that other Member State or the relocation of that child to that Member State would be contrary to his or her best interests, or both.

Costs

66Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Grand Chamber) hereby rules: Article 20 TFEU, read in the light of Article 7 and Article 24(2) and (3) of the Charter of Fundamental Rights of the European Union,must be interpreted as:– precluding the adoption, by the competent authority of the host Member State, of a decision refusing to grant a derived right of residence on its territory to a third-country national who is a parent of a minor child, that child being a Union citizen who has never resided in a Member State other than that of which he or she is a national, on the ground that that third-country national has a right of residence in another Member State, where that authority has not previously verified whether the family life which that child leads with both his or her parents, on whom he or she is dependent, could continue in that other Member State and whether the relocation of that child to the latter Member State would be contrary to his or her best interests;– requiring that third-country national to be granted a derived right of residence on the territory of the Member State of which that child is a national and in which he or she resides with both his or her parents, where either the family life which that child leads with both his or her parents, on whom he or she is dependent, could not continue in that other Member State or the relocation of that child to that Member State would be contrary to his or her best interests, or both.