I am a Canadian citizen and the sole custodial parent of three minor…
Question
I am a Canadian citizen and the sole custodial parent of three minor children, aged 15, 13 and 11. All three children hold dual Canadian and German citizenship. They were born and raised in Canada.
After several visits to Croatia, my children expressed a strong interest in living in Croatia for one school year so they could attend school there and experience a different culture and way of life. We therefore travelled to Croatia for this purpose.
Because my children are German citizens, I understood that they would be exercising their EU free-movement rights by moving from Canada to Croatia, another EU Member State. I also understood that, as their sole custodial parent and primary caregiver, I should be able to accompany them and reside with them while they exercise their EU rights, particularly because I will be financially supporting them, arranging their schooling and providing their day-to-day care.
We have now arrived in Croatia, and I went to the local police station following instructions previously provided by the Croatian embassy in Canada. I explained that I wanted to apply for a residence permit/residence card as the sole custodial parent of minor German EU citizens.
However, the police told me that I cannot obtain residence on the basis of being the children's parent and that I would instead need to qualify independently through another category, such as work, study or volunteering, if I want to remain in Croatia for more than 90 days.
I am confused by this response. I understand that EU citizens do not have an unconditional right to reside in another EU country for more than three months, but I believed that my children could qualify as students/minors with sufficient resources and health insurance, and that their right to reside should necessarily allow their primary caregiver to accompany them.
Am I misunderstanding the EU free-movement rules?
More specifically:
1. Do my children, as German citizens moving to Croatia for one school year, have a right of residence under Article 21 TFEU and Directive 2004/38/EC if they are enrolled in school, have comprehensive health insurance and have sufficient financial resources?
2. If they qualify for residence, does EU law give me, as their Canadian national and sole custodial parent/primary caregiver, a derived right to reside with them in Croatia?
3. Does it matter that I am the person providing the children's financial support rather than the children supporting me?
4. Is the Croatian police authority correct that I must obtain an independent Croatian visa/residence basis such as employment, study or volunteering, or should my application instead be assessed under EU free-movement law and the case law concerning the residence rights of a non-EU parent who is the primary caregiver of a minor EU citizen?
5. What specific EU and Croatian legal provisions or CJEU judgments should I refer to when asking the Croatian authorities to reconsider the issue?
I would particularly appreciate references to the applicable EU legislation, Croatian implementing legislation, and relevant Court of Justice of the European Union (CJEU) decisions.
SchengenSure answer
Your understanding is partly correct, but there is an important qualification.
Your children, as German citizens moving to Croatia, are EU citizens exercising free movement. However, for a stay of more than three months, their EU residence right is not completely unconditional. Under Article 7(1) of Directive 2004/38/EC, an EU citizen who is not working/self-employed can qualify through, among other routes, sufficient resources and comprehensive sickness insurance; a student can also qualify subject to the conditions in Article 7(1)(c).
The more important issue is your own status. Being the parent of EU children does not automatically make you a “family member” under Article 2(2) of Directive 2004/38. For an ascendant parent, the Directive's ordinary family-member definition requires the parent to be a dependent direct relative in the ascending line. Croatia's implementing legislation contains essentially the same dependency requirement.
However, that is not necessarily the end of the analysis.
The CJEU has specifically recognised that where a minor EU citizen has a genuine right of residence in another Member State, refusal to allow the child's third-country-national primary caregiver to reside with the child can deprive the child's EU residence right of its useful effect. In Rendón Marín, C-165/14, the Court stated that the EU rules allow a parent who is the minor EU citizen's primary caregiver to reside with the child where the child satisfies the applicable Article 7 conditions.
The earlier Zhu and Chen, C-200/02 judgment is particularly important because the Court recognised the residence right of a non-EU parent who was the primary caregiver of a minor EU citizen exercising free movement.
But there is a crucial caveat: your children's own EU-law residence conditions must be satisfied first. In Alokpa, C-86/12, the CJEU made clear that if the minor EU citizens do not meet the Directive's requirements, Article 21 TFEU does not automatically require the host state to grant the non-EU parent residence. The Court specifically noted the importance of sufficient resources and comprehensive sickness insurance.
What this means for your situation
The Croatian police may be correct if they were assessing you only under Croatia's ordinary “family member” definition, because a parent who is financially supporting the EU child does not normally satisfy the Directive's dependent ascending relative category. The CJEU has expressly distinguished the situation where the child depends on the non-EU parent from the normal Article 2(2)(d) situation where the EU citizen supports the parent.
But it would be too broad to conclude from that that you necessarily need your own work/study/volunteer visa. The separate EU-law question is whether your children have a qualifying right of residence in Croatia and, because you have sole custody and are their primary caregiver, whether your residence is necessary to make their EU residence right effective. The CJEU case law is directly relevant to that issue.
Croatia's Ministry of the Interior also confirms that non-EEA family members accompanying or joining an EEA national can apply for a residence card of a family member of a Union citizen when the statutory conditions are met.
So I would not frame the issue as “my children have an automatic unconditional right to live in Croatia for a year.” The stronger argument is:
My children are German Union citizens who have moved to Croatia to exercise their free-movement rights and are seeking to establish a lawful residence under Article 7 of Directive 2004/38. I am their sole custodial parent and primary caregiver. Once their own EU-law right of residence is established, EU law and CJEU case law must be considered regarding my derived residence right as the person who has actual custody and provides their care.
This is sufficiently technical that, given the Croatian authority has already rejected the residence route, I would strongly recommend obtaining advice from a Croatian immigration lawyer experienced specifically in EU free-movement law, rather than relying only on the police station's verbal explanation.