In the case of Yoshikazu Lida v. Stadt Ulm, the Advocate General issued an opinion holding that EU law can confer on a parent who is a third-country national and has custody rights a right of residence in his child’s State of origin if that child has moved with the other parent to another Member State.
In this case, Mr Lida, a Japanese national, was married and had a child with a German national. The child held German, Japanese and US nationality. The family moved from the United States to Germany in 2005. Mr Lida was granted a residence permit here on the basis of his marriage to a German national. In 2008, his wife and child moved to Austria and the couple separated.
Mr Lida’s application for a right of residence in Germany by virtue of his status as a family member of an EU national was refused. He had taken the view that he had a right of residence due to the fact that he had a right of custody over his daughter who was now living in Austria. The German court asked the Court of Justice whether under EU law, a parent who has a right of custody and who is a third-country national has a right to remain in the Member State of origin of his child, who is an EU citizen, in order to maintain a personal relationship and direct parental contact on a regular basis, if the child, in exercise of his or her right of free movement, moves from there to another Member State.
In the opinion of Advocate General Verica Trstenjak, it was said that no such right can be derived from the Directive on Free Movement. It was also the view of the Advocate General that no such right of residence for Mr.Lida in Germany can be derived from the previous case-law of the Court of Justice. Such case law holds that the EU citizen status of a child may confer a right of residence under EU law on a parent who is a third-country national and has custody rights. However, under this case-law the core of the rights with EU-citizen status confers on the child must be impaired.
The Advocate General also said however that a right of residence under EU law for the parent who is a third-country national and in the State of origin of the minor child may possibly be acquired in order to effectively safeguard the child’s fundamental rights. These fundamental rights are contained in the Charter of Fundamental Rights and include the right to maintain a personal relationship and direct contact with both parents and to respect for family life. The Charter of Fundamental rights is only applicable however if there is a sufficient connection with the implementation of EU law. The Opinion stated that such a connection may be assumed where refusal of a residence permit under EU law, while not constituting interference with the substance of the rights conferred by virtue of the status of EU citizen, does constitute a less serious restriction of the right to free movement on the part of the EU citizen who is a minor. Accordingly, the father’s insecure future residence in Germany may potentially deter his daughter from further exercising her right to free movement as an EU citizen.
The Opinion concluded that, “under EU law, a parent who has custody rights and is a third-country national, may, in order to maintain a personal relationship and direct parental contact on a regular basis, have a right of residence in the Member State of origin of his child who is an EU citizen, if the child, in exercise of his or her right of free movement, has moved from there to another Member State. In order for such a right of residence to exist, the denial thereof must have a restrictive effect on the child’s right to freedom of movement and be regarded as a disproportionate interference with fundamental rights in the light of the fundamental rights of the child, enshrined in the Charter of Fundamental Rights, to maintain on a regular basis a personal relationship and direct contact with both parents and to respect for family life”.
The opinion of the Advocate General is not binding on the European Court of Justice, but it is viewed as a possible legal solution open for the court to adopt.
Click here for a copy of the Opinion.