Adjustment of practice and the possibility of reopening certain cases in which third-country nationals who are parents of a Danish child have been refused family reunification
Earlier this year, the European court of justice delivered a ruling in a case concerning residence permits for parents of minor EU citizens. The Ministry of Immigration has now established the scope of the ruling in relation to Danish legislation.
The EU court’s ruling of 5 May 2022, in the joined cases C-451/19 and C-532/19, XU and QP relates to the case law whereby a third-country national, as a parent of a minor EU citizen, must exceptionally be granted a residence permit under Article 20 TFEU, if there is a dependency relationship between the minor EU citizen and the third-country national that, upon denial of residency, would require the child to leave the EU with the third-country national.
In a new development, the ruling establishes that, in a situation where a minor child EU citizen lives with both of his/her parents and both of the child's parents share in the care of the child and in the legal, emotional and financial maintenance of that child on a daily basis, there is a rebuttable presumption of the existence of a dependency relationship that would give rise to a derivative right of residence under Article 20 of TFEU in favor of the third-country parent.
In light of the ruling, on 23 August 2022, the Immigration Service decided to suspend the pending cases that may be affected by the ruling until the scope of the ruling was determined. Today, the Ministry of Immigration and Integration has informed the Danish Parliament of how the ruling is to be assessed legally.
The Immigration Service is therefore now resuming the processing of cases and adjusting its practice so that the principles of the ruling are applied in the processing of both pending and decided cases of family reunification with spouses, including cases of revocation, lapsing or refusal of extension of family reunification permits.
At the same time, the Immigration Service will examine, by its own accord, whether cases in which a decision has already been made should be reopened as a result of the ruling (see below).
What does the ruling entail?
It follows from the ruling that a presumption rule must be applied in a family situation where a minor Danish child lives with both his/her parents (one of whom is a Danish national and the other a third-country national) and where both parents share in daily caretaking of the child and the legal, emotional and financial maintenance of the child. The presumption rule implies that in such a situation the third-country parent should normally be granted a residence permit because there is a presumption of a dependency relationship between the child and both parents. However, this does not apply if there are specific circumstances that contradict the existence of a dependency relationship between the third-country parent and the child.
It is the assessment that there is a presumption of a dependency relationship of a nature that can form the basis for granting a derived right of residence under article 20 of TEUF when there is a real and stable family life present. In assessing this, the duration of the family life, in particular the period during which the third-country parent has lived with the child and the child's other parent, will be given considerable weight, just as requirements may be made to the actual exercise of family life in practice.
Furthermore, it is the assessment that the new presumption rule means that it is the immigration authorities who must specifically refute the presumption of a dependency relationship when there is a family situation in which the child lives with both parents who broadly share in the daily caretaking of the child.
Which cases will be reopened?
The Danish Immigration Service examines whether these cases should be reopened
As a result of the ruling, the Immigration Service will, on its own accord, consider the need for reopening cases decided after 10 May 2017, where the European Court of Justice ruled in case C-133/15, Chavez-Vilchez, as in the current ruling, the court expands on its interpretation in relation to the application of the criteria first established by the European Court of Justice in the Chavez-Vilchez ruling.
A decision to reopen a case does not necessarily mean that a residence permit will be granted.
The Danish Immigration Service will therefore contact you if, after 10 May 2017, you have been refused family reunification with a spouse, including if a family reunification permit has been revoked or refused an extension, or if a decision has been made that such a permit is considered to have lapsed and you are deemed to be covered by the judgment based on the information in your case.
If the Immigration Service is unable to contact all the people involved, we will inform of this development at a later date on newtodenmark.dk and urge those in question to contact the Immigration Service.
The Danish Immigration Service will not examine whether these cases should be reopened
The Danish Immigration Service will not contact you if a decision has been made in your case before 10 May 2017. You must therefore contact the Immigration Service yourself if you believe that you are covered by the ruling and wish to have your case reopened.
The Immigration Service does not assess whether administrative expulsion cases should be reopened, regardless of the date of the decision. You must therefore contact the Immigration Service yourself if you have been administratively expelled and you believe that you are covered by the judgment and therefore wish to have your case reopened.