The Chavez-Vilchez residence right is the right a non-EU parent can derive from their Dutch child’s Union citizenship. It exists where refusal would in practice force the child to leave the territory of the Union.
Legal basis
The basis is Article 20 of the Treaty on the Functioning of the European Union, as interpreted by the Court of Justice in Ruiz Zambrano of 8 March 2011 and developed in Chavez-Vilchez of 10 May 2017. What matters is whether the relationship of dependency between parent and child is such that the child would be compelled to follow the parent. The Court held that all circumstances must be weighed: the child’s age, physical and emotional development, the strength of the emotional bond with each parent, and the risk that separation poses to the child’s equilibrium. That the other, Dutch parent is able and willing to assume sole daily care is a relevant but not automatically decisive circumstance. The right exists by operation of law; the Immigration and Naturalisation Service merely confirms it.
How it works in practice
The application is made as an assessment under Union law. The file turns on evidence of care: school and doctor’s records, photographs, statements from third parties, a daily schedule showing who does what. The income and passport requirements do not apply, and no provisional residence permit is needed. A parent without formal authority can also hold the right, provided dependency is established in fact.
Where it goes wrong
Applicants substantiate the caring relationship too thinly, so the Service assumes the other parent can provide care alone. A second error is applying for an ordinary family permit when the Union law route is more favourable. Third, it is forgotten that the right can end once the dependency falls away.
Related terms
The right sits alongside the residence rights of EU citizens, connects to family reunification and to parental authority.
Do you have a Dutch child and no residence permit? Our immigration law specialists assess this route.
