Opinion of Advocate General Ćapeta delivered on 4 September 2025.

• Jurisdiction: European Union
• Celex Number: 62024CC0147
• ECLI: ECLI:EU:C:2025:650
• Date: 04 September 2025
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 4 September 2025 (1)

Case C‑147/24 [Safi] (i)

V

v

Staatssecretaris van Justitie en Veiligheid

(Request for a preliminary ruling from the rechtbank Den Haag (District Court, The Hague, Netherlands))

( Reference for a preliminary ruling – Citizenship of the Union – Article 20 TFEU – Static minor EU citizen dependent on a third‑country national parent – Derived right of residence of the parent – Parent with a right of residence in a Member State other than that of the minor’s nationality and residence – Return of illegally staying third-country nationals – Directive 2008/115/EC – Article 7 of the Charter of Fundamental Rights of the European Union – Right to private and family life – Article 24(2) and (3) of the Charter – Best interests of the child)

I. Introduction

1. When can an EU citizen invoke the phrase ‘Civis Europæus sum’ against his or her own Member State? (2)

2. The present case concerns a minor of Netherlands nationality, who has never exercised his EU-based right of free movement to leave his Member State, and who could be compelled by Netherlands authorities to leave that Member State and to move to Spain.

3. The competent Netherlands authorities refused to grant that minor’s third-country national (TCN) mother a derived right of residence under Article 20 TFEU, on the basis of the TCN parent’s right to reside in Spain. The authorities thus considered that Article 20 TFEU did not apply because the refusal to grant a right of residence would not result in the EU citizen in question (the TCN’s child) being compelled to leave the territory of the European Union as a whole, but merely the territory of the Netherlands.

4. Does Article 20 TFEU confer a derived right of residence in such circumstances?

5. To answer, the Court will have to revisit the Ruiz Zambrano line of case-law. (3)

II. The background, the questions referred and the procedure before the Court

6. V is a TCN, who lives in the Netherlands with her minor child, who has Netherlands nationality, and her spouse, who has dual nationality (that of the Netherlands and of a third country).

7. The child was born in the Netherlands and has never left the territory of that Member State. He is thus a static EU citizen. According to the order for reference, that child has speech and language difficulties, for which he receives special education and benefits from organised transportation to and from a special education institution.

8. V’s spouse has a medical condition and receives social benefits.

9. V has been residing in the Netherlands since 2014, without a valid residence permit, and has never had any encounter with the justice system.

10. On 13 November 2020, V lodged an application for an EU/EEA document certifying her derived right of residence under Article 20 TFEU.

11. The Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands, ‘the State Secretary’) rejected V’s application on 11 November 2021. It considered that she is not entitled to a derived right of residence under Article 20 TFEU, as her dependent minor child would not be compelled to leave the territory of the European Union as a whole, but could instead join her in Spain, where she enjoys a right of residence.

12. It is apparent from the order for reference that V, who resided in Spain between 1999 and 2014, still holds a valid residence permit in that Member State.

13. After rejecting her request as based on Article 20 TFEU, the State Secretary examined ex officio her right under Article 8 of the European Convention on Human Rights (ECHR), which protects private and family life. It found that she does not enjoy a right of residence under that provision either. Despite its finding that a private and family life did exist in the Netherlands, it held that the interests of the Netherlands in the area of immigration outweighed the personal interests of the applicant and her family.

14. That refusal to recognise V’s right of residence in the Netherlands meant that she was illegally staying in the territory of that Member State. Therefore, on the basis of Directive 2008/115/EC, (4) the State Secretary ordered V to return immediately to Spain. (5) Failure to comply with that order would result in a return decision being issued against V.

15. V lodged a complaint against that decision which the State Secretary dismissed as manifestly unfounded on 20 June 2022.

16. On the same day, V lodged an appeal against that dismissal before the rechtbank Den Haag (District Court, The Hague, Netherlands), which is the referring court.

17. That court asks whether the circumstance that V holds a right of residence in another Member State (Spain) is a sufficient ground for refusing her a derived right of residence, despite the existence of a relationship of dependency between her and her minor child. (6) While relocation to Spain would mean that she and her minor child would not be compelled to leave the territory of the European Union as a whole, the child would nonetheless be obliged to leave the Netherlands, effectively compelling him to exercise his free movement right. The referring court also asks at what point consideration should be given to the best interests of the child and the right to family life in the process of assessing applications for a derived right of residence.

18. In addition, the referring court seeks to ascertain whether the obligation under Article 5(a) and (b) of Directive 2008/115 to consider the best interests of the child and the right to family life applies equally when a TCN is ordered to move immediately to another Member State under Article 6(2) thereof, as compared to a return decision under Article 6(1) of that directive. (7)

19. In the light of those considerations, the referring court, in summary proceedings, suspended the legal effects of the contested decision until such time that it was ready to rule on the merits of the appeal.

20. In those circumstances, the rechtbank Den Haag (District Court, The Hague) stayed the main proceedings and referred 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 Directive 2008/115, 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?’

21. A hearing was held on 25 March 2025 at which V, the Netherlands and Danish Governments and the European Commission submitted their arguments.

III. Analysis

22. Article 20 TFEU grants a derived right of residence to a TCN when it is necessary to protect the citizenship rights of nationals of Member States. (8)

23. In the present case, the competent Netherlands authorities considered that it was not necessary to grant a derived right of residence to V in order to protect the EU citizenship rights of her minor child. The primary reason for that decision was the circumstance that V had a right to reside in Spain. That meant that, even though her minor child would also have to leave the Netherlands on account of his dependency on V, (9) he would not be compelled to leave the territory of the European Union as a whole. The decision-making authority considered that the family could settle in Spain, therefore Article 20 TFEU did not apply.

24. After deciding that V had no right of residence in the Netherlands, be it under EU law or on any other grounds, the competent authority ordered her to move immediately to Spain. That decision was based on Article 6(2) of Directive 2008/115.

25. In those circumstances, by its first question, the referring court asks, in essence, whether a TCN parent can rely on Article 20 TFEU in order to be granted a derived right of residence only where a dependent static minor EU citizen would otherwise be forced to leave the territory of the European Union as a whole, or whether there are other situations in which Article 20 TFEU is applicable.

26. By its second question, the referring court asks in essence whether Article 20 TFEU imposes an obligation on competent national authorities to assess whether ordering a TCN parent to move to another Member state is in conformity with the best interests of the child, and whether the private and family life of the persons concerned can continue in that other Member State, before making such an order. The referring court also seeks to ascertain whether those fundamental rights should be taken into account when deciding whether to grant a TCN parent a derived right of residence.

27. Although the answers to those two questions...