By Sander Groen of Kroes Advocaten Immigration Lawyers
Your child has Dutch nationality and you wish to live or remain with your minor child in the Netherlands? However, you yourself are a non-EU national who already has a right of residence in another EU Member State. Can you remain in the Netherlands?
Following a recent judgment of the Court of Justice of the European Union (CJEU), against the Netherlands, a “Chavez-Vilchez” residence right in the Netherlands may be a possibility.
The CJEU ruled in the “Chavez-Vilchez and Others”, of 10 May 2017 (C-133/15), that there are very specific situations in which, despite the fact that secondary legislation on the right of residence of non EU nationals (third-country nationals) does not apply and the European 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.
Based on this CJEU ruling, in the Netherlands “Chavez-Vilchez” residence permits are granted to non-EU parents of Dutch minor children. Other EU Members States also incorporated this ruling and must also grant residence permits that fulfill the conditiona as laid out by the CJEU in this judgement.
To be able to apply for a “Chavez-Vilchez” residence permit, there must exist such a “relationship of dependency” between the Dutch minor child and the non EU parent, that the Dutch child would be compelled to accompany his or her non EU parent and to leave the territory of the European Union as a whole.
Now, the CJEU in its judgment of 4 June 2026 in Safi (C-147/24), further specified this.
In its judgment of 4 June 2026 in Safi (C-147/24), the CJEU clarified that a third-country national cannot be refused a derived right of residence in the Netherlands simply because that parent has a right of residence in another EU Member State. In such cases, the Dutch Immigration and Naturalisation Service must also consider whether the child’s family life can continue in that other EU Member State and whether relocating the child would be contrary to the child’s best interests.
The facts of the Safi case
The case concerned a Moroccan mother who had a valid right of residence in Spain. She lived in the Netherlands with her Dutch/Moroccan husband and their Dutch son, who was born in 2015.The mother applied for a derived right of residence in the Netherlands, the “Chavez-Vilchez” residence permit, based on her relationship with her Dutch child. The Dutch Immigration and Naturalisation Service rejected the application because the mother already had a right of residence in Spain. They considered that her Dutch child could accompany her to Spain, and therefore the Dutch child would not have to leave the territory of the European Union as a whole.
The case ultimately came before the CJEU following questions referred by the District court.
What did the CJEU decide?
The CJEU held that Article 20 TFEU, read together with Articles 7 and 24 of the EU Charter of Fundamental Rights, prevents a EU Member State from refusing a derived right of residence solely on the basis that the third-country national parent has a right of residence in another Member State.
This means that in the authorities first assess:
- whether the child’s family life with both parents can continue in the other Member State; and
- whether moving the child to that EU Member State would be contrary to the child’s best interests.
In the Safi case, the child’s circumstances were particularly relevant. The child lived with both parents and was dependent on them. The father was unable to work and received social assistance of the Dutch State, meaning it was unlikely that he would be able to lawfully move to and reside in Spain. The child also had speech and language difficulties, received special educational support and had always lived in the Netherlands. These circumstances had to be taken into account when assessing whether relocation to Spain would be in the child’s best interests.
The CJEU therefore confirmed that, depending on the circumstances, the third-country national parent may be entitled to a derived right of residence in the EU Member State of which the child is a national and where the child resides, even though the non EU parent already has a right of residence in another Member State.
What does Safi mean in practice?
Having a residence permit in another EU Member State does not automatically exclude a Chavez-Vilchez residence right. The circumstances of the child and the family must be assessed, including the possibility of maintaining family life in the other EU Member State and the child’s best interests.