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Back to Index of Laws Concerning Children of Undocumented Migrants

Summary

No EU legislation deals with immigration enforcement relief for the children of illegal immigrants. The individual EU Member States grant specific status rights and decide who can acquire nationality. Nonetheless, all immigrants in the EU enjoy certain fundamental rights irrespective of their immigration status, including access to education and health care. Member States are also obliged to take the best interests of the child and family life into account in removal proceedings. 

The European Union (EU) has enacted various legislative measures intended to facilitate legal migration and to address illegal immigration.[1]  However, with the exception of asylum seekers,[2] it is up to the individual EU Member States to grant specific status rights and to decide who can acquire nationality.[3]  Nonetheless, irrespective of their immigration status, all immigrants enjoy certain fundamental rights, like access to education and health care, derived from international human rights treaties, the European Convention on Human Rights (ECHR),[4] and the Charter of Fundamental Rights of the EU (EU Charter).[5]  EU secondary law, meaning legal instruments based on the EU Founding Treaties, spells out the rights of illegal migrants to different degrees, depending on the subject area. 

With regard to children in general, article 24 of the EU Charter provides that children’s best interests must be a primary consideration in all actions relating to children, whether taken by public authorities or private institutions, and that every child has “the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.” 

The EU Return Directive provides a minimum level of specific fundamental rights for illegal third-country nationals in return procedures and for those who are not removed due to legal, humanitarian, or actual obstacles.[6]  The EU Return Directive explicitly recognizes that it is legitimate for Member States to return illegally staying third-country nationals.[7]  However, it obliges the Member States to take the best interests of the child and family life into account when implementing the Directive.[8] 

Citizenship of the EU is granted to every person holding the nationality of an EU Member State, but it is additional and does not replace national citizenship.[9]  As the granting of national citizenship falls within the competence of the individual Member States, no EU legislation deals with immigration enforcement relief similar to the US DACA program for children of illegal immigrants. However, a third-country national who is the parent of an EU-citizen minor child may rely on a derived right of residence in the EU if the child would otherwise have to leave the EU and therefore be deprived of the enjoyment of the substance of the rights attached to EU citizenship.[10]

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Prepared by Jenny Gesley
Foreign Law Specialist
September 2017


[1] Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), art. 79, 2012 O.J. (C 326) 47, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN, archived at http://perma.cc/U5GT-QE3D.

[2] Id. art. 78.

[3] European Court of Justice (ECJ), Case C-135/08, Janko Rottmann v. Freistaat Bayern, para. 39, http://curia. europa.eu/juris/document/document.jsf?text=&docid=75336&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=1553681, archived at http://perma.cc/8SZY-4CCN.

[4] European Convention on Human Rights (ECHR), Nov. 4, 1950, 213 U.N.T.S. 221, http://www.echr.coe.int/ Documents/Convention_ENG.pdf, archived at http://perma.cc/L66H-SW6K.

[5] Charter of Fundamental Rights of the European Union, 2012 O.J. (C 326) 2, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012P/TXT&from=EN, archived at http://perma.cc/7YQU-NQHJ.

[6] Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, 2008 O.J. (L 348) 98, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0098:0107:en:PDF, archived at http://perma.cc/V96K-72MV.

[7] Id. consideration 8.

[8] Id. art. 5.

[9] TFEU, supra note 1, art. 20, para. 1.

[10] ECJ, Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), para. 45, http://curia.europa.eu/juris/document/document.jsf?text=&docid=80236&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1556811, archived at http://perma.cc/9RVA-M7BD; ECJ, Case C-133/15, H.C. Chavez-Vilchez and Others v. Raad van bestuur van de Sociale verzekeringsbank and Others, http://curia.europa.eu/juris/ document/document.jsf?text=&docid=190502&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=1557518, archived at http://perma.cc/2UV5-3X8H.