Chavez-Vilchez protection may apply even where the parent has a residence right in another EU Member State

Your child has Dutch nationality and you wish to remain with your child in the Netherlands. However, you yourself are a non-EU national who already has a right of residence in another EU Member State. Can you remain in the Netherlands? Following a recent judgment of the Court of Justice of the European Union (CJEU), a Chavez-Vilchez residence right in the Netherlands may be a possibility.

In its judgment of 4 June 2026 in Safi (C-147/24), the CJEU clarified that a third-country national cannot be refused a derived right of residence in the Netherlands simply because that parent has a right of residence in another EU Member State. In such cases, the IND must also consider whether the child’s family life can continue in that other Member State and whether relocating the child would be contrary to the child’s best interests.

The facts of the Safi case

The case concerned a Moroccan mother who had a valid right of residence in Spain. She lived in the Netherlands with her Dutch/Moroccan husband and their Dutch son, who was born in 2015.The mother applied for a derived right of residence in the Netherlands based on her relationship with her Dutch child. The Dutch authorities rejected the application because she already had a right of residence in Spain. They considered that the child could accompany his mother to Spain.The case ultimately came before the CJEU following questions referred by the Rechtbank Den Haag.

What did the CJEU decide?

The CJEU held that Article 20 TFEU, read together with Articles 7 and 24 of the EU Charter of Fundamental Rights, prevents a EU Member State from refusing a derived right of residence solely on the basis that the third-country national parent has a right of residence in another Member State.

This means that in the Netherlands, the IND must first assess:

• whether the child’s family life with both parents can continue in the other Member State; and
• whether moving the child to that EU Member State would be contrary to the child’s best interests.

In the Safi case, the child’s circumstances were particularly relevant. The child lived with both parents and was dependent on them. The father was unable to work and received social assistance, meaning it was unlikely that he would be able to lawfully move to and reside in Spain. The child also had speech and language difficulties, received special educational support and had always lived in the Netherlands. These circumstances had to be taken into account when assessing whether relocation to Spain would be in the child’s best interests.

The CJEU therefore confirmed that, depending on the circumstances, the third-country national parent may be entitled to a derived right of residence in the EU Member State of which the child is a national and where the child resides, even though the parent already has a right of residence in another Member State.

What does Safi mean in practice?

Having a residence permit in another EU Member State does not automatically exclude a Chavez-Vilchez residence right in the Netherlands. The circumstances of the child and the family must be assessed, including the possibility of maintaining family life in the other Member State and the child’s best interests.

Each case will, however, depend on its specific circumstances.

Do you need help requesting a residence permit?

If you wish to apply for a residence permit based on your relationship with your Dutch child while you already have a right of residence in another EU Member State, please contact us. We can assess your individual circumstances and advise you on the available options and the best next steps.