Foreign parents of a child with the Dutch nationality can request permanent residence in the Netherlands. On the following website from the Dutch Immigration and Naturalisation Service, you find detailed information on the process.

The process of requesting permanent stay starts with applying for a facilitating visa from the Dutch representation in China by applying at one of the TLScontact Visa Application Centre.

To determine whether the foreign parent of the Dutch child qualifies for this type of visa (based on the Chavez-Vilchez ruling), the identity of the parent and the family relationship between the foreign parent and the Dutch child needs to be established based on legal documents. It also needs to be substantiated where and with whom the Dutch child currently has permanent residence.

Chavez-Vilchez ruling

On 10 May 2017 the Court of Justice of the European Union gave judgment in the case brought by Chavez-Vilchez and Others (C-133/15). The Court held that the third-country national parent of a minor with Dutch nationality is eligible for EU residence if such a relationship of dependency exists between the third-country national parent and the child that the child would be obliged to leave the territory of the EU if that parent were refused residency. When assessing the relationship of dependency the best interests of the child must be taken into account.

A relationship of dependency exists if the third-country national parent carries out tasks relating to the child’s primary care and upbringing (regardless of the scope and frequency of these tasks). However, a relationship of dependency can exist in other cases too.

Information on the judgment

The judgment in Chavez-Vilchez and Others follows a previous case heard by the Court of Justice (Zambrano). As far back as 2011, the Court held, in Zambrano,that member states cannot deny residence to a third-country parent of a minor child who is a national of that member state if this would oblige the child to leave the EU with the third-country parent. The Court saw this as ‘depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status’. In specific situations, however, the Immigration and Naturalisation Service (IND) was still able to argue that if the child’s other parent (who must have Dutch nationality, given that the child’s Dutch nationality stems from this parent) could care for the child, the child would not have to leave the EU.

In the Chavez-Vilchez judgment, the Court of Justice confirms that the third-country national parent of a minor child with Dutch nationality can be eligible for a right of residence in the EU, derived from the right of residence of their child. The judgment clarifies where the burden of proof lies for both the state and the third-country national. It follows from the Court’s stance that the fact that there may be another parent (with Dutch nationality) who could in principle assume sole responsibility for the child’s day-to-day and primary care is a relevant factor, but is not a sufficient ground for refusing residence. According to the Court, in order to refuse residency a member state must establish that there is not such a relationship of dependency between the third-country national parent and the child that the child would be obliged to leave the territory of the EU if that parent were refused residency. The Court states that the competent authorities must take account of the right to respect for family life and the best interests of the child.

According to the Court, account must be taken of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of the child’s emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium.

In terms of the burden of proof, in the Court’s view it is initially the responsibility of the third-country national parent to demonstrate that refusing residence would mean that the Dutch national child would be obliged to leave the EU. However, it is then for the competent authorities to undertake whatever inquiries are necessary to enable them to assess, on the basis of the evidence provided by the third-country national, whether the Dutch national parent is able and willing to care for the child. The competent authorities must also assess whether such a relationship of dependency exists between the third-country national parent and the child that the child would be obliged to leave the territory of the EU if that parent were refused residency.

Important:

Please ensure to provide the following documents at the time of your application.

This facilitating visa is free of charge.

After approval and issuance of the facilitating visa, the applicant can travel to the Netherlands where the procedure for permanent stay can be continued by the Immigration and Naturalisation Service as explained on the website above.

Frequently Asked Questions

Please read the information below carefully to find answers to your questions.

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