Judgment of the Court of Justice First Chamber, 22 June 2023, Staatssecretaris van Justitie en Veiligheid Thai mother of a Dutch minor child, C-459/20

• Date: 22 June 2023
• Year: 2023

9

comparison with the status quo ante resulting from the pre-existing national legal framework, the

placing online of the personal data concerned represents a potentially significant in terference with

the fundamental rights guaranteed in Article 7 and Article 8(1) of the Charter, without that

interference being capable, in the present case, of being justified by any benefits that might result

from it in terms of preventing conflicts of interest on the part of judges and an increase in confidence

in their impartiality.

II. CITIZENSHIP OF THE UNION: DERIVED RIGHT OF RESIDENCE OF THIRD-

COUNTRY NATIONALS WHO ARE FAMILY MEMBERS OF A CITIZEN OF THE

UNION

Judgment of the Court of Justice (First Chamber), 22 June 2023, Staatssecretaris van Justitie

en Veiligheid (Thai mother of a Dutch minor child), C-459/20

Link to the full text of the judgment

Reference for a preliminary ruling – Citizenship of the Union – Article 20 TFEU – Right to move and reside

freely within the territory of the Member States – Decision of a Member State refusing residence to a

third-country national parent of a minor child who has the nationality of that Member State – Child living

outside the territory of the European Union and never having resided in its territory

X, a Thai national, resided legally in the Netherlands where she was married to A, a Dutch national.

Their child, of Dutch nationality, was born in Thailand where he has always lived. After the birth of the

child, X returned to the Netherlands. In 2017, following the couple’s separation, the Netherlands

authorities revoked X’s residence permit. After the divorce, X applied, in 2019, to reside in the

Netherlands with another national of that Member State. In that context, the Netherlands authorities

sought to ascertain of their own motion whether she could obtain a derived right of residence under

Article 20 TFEU in order to be able to reside with her minor child, a Union citizen, in the territory of the

European Union. The Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and

Security, Netherlands) rejected that application on 8 May 2019. On the same day, X was deported to

Thailand.

Seised by X against that rejection decision, the rechtbank Den Haag, zittingsplaats Utrecht (District

Court, The Hague, sitting in Utrecht, Netherlands), which is the referring court, has doubts as to the

interpretation to be given to Article 20 TFEU in the present case.

In its judgment, the Court sets out the conditions in which a third-country national may benefit from a

derived right of residence based on Article 20 TFEU where the minor child of that national is a Union

citizen but is outside the territory of the European Union and has never resided in its territory.

Findings of the Court

At the outset, the Court recalls that Article 20 TFEU precludes national measures, including decisions

refusing a right of residence to the members of the family 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. In those situations there must also be, between the third-country national and the

Union citizen, who is a member of his or her family, a relationship of dependency such that a decision

refusing the right of residence to the third-country national would deprive the family member of the

genuine enjoyment of the substance of the rights conferred by the status of Union citizen. That is the

case where the latter is compelled to go with the third-country national in question and to leave the

territory of the European Union as a whole, or not to be able to enter and reside in the territory of the

Member State the nationality of which he or she holds.