Background:

The judgment analyses similar questions and situations as in Ruiz Zambrano (C-34/09), K.A. (C-82/16) and Chavez-Vilchez (C-133/15). The latter cases regarded, amongst others, the derived right of residence of third-country adults with whom an EU minor has a relationship of dependency. More specifically, in these cases, the Court of Justice clarified that third-country adults could benefit from a derived right of residence under Article 20 TFEU where a relationship of dependency exists with an EU minor and the minor would be deprived of the genuine enjoyment of the substance of the rights attached to the status of EU citizen. This situation, in principle, differs from the situation of a third-country family member of an EU citizen who falls within the scope of the Citizenship Directive (Directive 2004/38/EC). Indeed, Article 3(1) of the latter Directive prescribes that it only applies to all EU citizens who move to or reside in a Member State other than that of which they are a national, and to their family members (…) who accompany or join them (…).

The ad-hoc query includes questions on the evidentiary requirements for identity and the special relationship of dependency.

Respondents:

Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Greece, Hungary, Latvia, Lithuania, Luxembourg, Netherlands, Portugal, Slovakia, Slovenia, Spain and Sweden answered the questions included in this ad hoc query.

Findings:

Here are some findings based on the compilation of answers: 

As to which type of document is required to prove the identity of the third-country national-dependant, most Member States refer to a (valid) passport (such as CY, ES, FI, HU, LT, LU, LV, NL, PT and SE), other countries (such as BE, BU, EE, FR and SL) refer to a valid ID document and others to a travel document (CZ and HR).

However, most Member States allow an exception to the general rule (BU, CY, EE FI, NL, SE and SL). Other countries (such as BE, FR, LT, LU, LV and PT) do not allow exceptions, even if BE and LU indicated that they do allow for exceptions in practice (but not in law).

When it comes to the relationship of dependency, most Member States indicated that they analyse this on a case-by-case basis (such as BE, CY, CZ, FI, HI, LT, PT and SK). Other countries refer to criteria laid down in national legislation (such as BU, FR and NL) or CJEU case-law (HU).  

The rebuttability of a relationship of dependency of an EU minor is implemented in different ways. Some Member States, for example, clearly refer to the Best Interest of the Child and involve social welfare services in the decision-shaping (such as CY and HR).

Regarding the procedure for applying for a residence permit before or after entry, or both before and after entry, practices differ. BE, CZ, EE, FI, HI, LT and LV indicate that applications can be lodged, in principle, both before and after entry. BU, CY, ES, FR, LU, NL, PT and SE indicated that such application can, in principle, only be lodged after entry. In the case of FR, an online application can be made from any place, but for the processing of the application the family member must be present on the national territory.

As to the type of residence permit or residence card issued to individuals with a derived right of residence under Article 20 TFEU, BE and SK refer to the residence permit for family members of an EU citizen. All other countries seem to refer to other (national/ad hoc) types of permits.

For further details, please read the compilation of answers attached above.