The Family Rights of European Children: Expulsion of non-European parents

Abstract

In Ruiz Zambrano and Dereci the Court found that the Treaty prohibits expulsion of a family member of a Union citizen if that expulsion would force the Union citizen to leave the Union too. This is of particular importance where the Union citizen is a child, since children are particularly dependent upon their parents and perhaps cannot be expected to remain behind without them. The cases therefore provide a – qualified and complicated – right of residence for the parents of Union citizen children. This parental right of residence is at odds with many national immigration practices, which have become increasingly restrictive in recent years. The precise limits of the Court’s new doctrine therefore become important. What must the relationship between child and parent be for this right to be active? Does the right only apply to children already possessing an EU passport, or also to those with a plausible, but not yet officially accepted, claim to an EU nationality? This paper argues that both measures expelling parents, and measures hindering a child’s establishment of its Union citizenship count as interference with the right to reside in the Union, and must satisfy a proportionality test, and that expulsion, in the light of contemporary ideas about the importance of parent-child contact, will often be disproportionate.