The Court of Justice of the European Union (CJEU) has backed this Thursday the right of a Moroccan citizen to continue living in the Netherlands with her minor son and her husband, both Dutch nationals, in order to continue living with the child, even though the mother has a residence permit in Spain.
The origin of the litigation dates back to 2021, when the Dutch authorities refused to grant the woman a residence permit —who has resided in the Netherlands since 2014, the year she married there, and became a mother in 2015— on the grounds that she already enjoyed the right of residence in Spanish territory, ordering her to move to Spain without delay and maintaining that the minor could accompany her.
The woman challenged that decision before the District Court of The Hague, which found a relationship of dependency between the mother and her minor son and, due to doubts about the correct application of EU law, raised a preliminary question to the CJEU to resolve the conflict.
In its ruling, the Court of Justice emphasizes the need to safeguard the family life that the child currently maintains in the Netherlands, where he resides with his two parents, on whom he depends; and warns, furthermore, of the risk that the minor could be separated from his father if the latter were not to obtain a right of residence in Spain in the event that the mother returned to that country with the child.
The European High Court also indicates that the mother's right of residence in the Netherlands must be recognized if it is concluded that the move to Spain violates the best interests of the minor.
Consequently, the judgment highlights that the refusal to grant that residence permit would damage family unity and deprive the child of the possibility he has enjoyed since birth: to maintain periodic personal relationships and direct contact with his father and mother.