January 27
2022
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Emilija Berzanskaite
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29th November 2021
Employment & Immigration

EFTA Court: children derive rights of residence from stepparents who are EEA workers, even in the event of divorce

The EFTA Court, which fulfils the judicial function within the EFTA system, has delivered a judgment in Case Q and Others v the Norwegian Government (E-16/20) on the derived rights of residence of a stepchild of an EEA national worker and the child’s third-country national mother under Regulation 492/2011 on freedom of movement for workers within the Union.

The case in the main proceedings concerns the request referred by the Oslo District Court regarding the validity of the Immigration Appeals Board’s decision to reject the application for a Norwegian residence permit submitted by Ms Q, a third-country national, and her child A, an EEA national. Both of them had been previously granted residence permits in Norway as family members of Mr C, a Greek national who worked in Norway and who was the child’s stepfather. The doubt on their residence permits arose because Mr C had filed for divorce. 

The Court firstly found that the term ‘children’ under Article 10 of Regulation 492/2011 must be understood to also include stepchildren. In this regard, the Court held that the child of an EEA national who is a worker and the child’s third-country national parent caring for that child, both derive a right of residence on the basis of Article 10 of the mentioned Regulation. The right exists independently of whether the child is common or of the third-country spouse only. 

Regarding whether a divorce has implications on the child’s derived right of residence, the Court held that a child whose parent is a third-country national and who was granted a right of residence using the EEA national as a reference person retains such right even if the EEA national has applied for divorce from the parent of that child.

However, the Court stated that if the marriage is considered to be non-genuine (‘marriage of convenience’), the authorities of the EEA State may take any measures necessary to refuse, terminate or withdraw rights derived from such abuse, in line with the principle of proportionality and procedural safeguards.

Read the judgment here and the EFTA Court’s press release here.

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