HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

“ It seems that there are now no internal situations at all, as far as a Union citizen is affected ”. 27 A move to be cherished. 28 Alas, a clear and complex understanding of what the substance of the rights constitutes had not been delivered. 2. The Substance of the Rights Test Revisited I will start by introducing the factual circumstances of Chavez-Vilchez . This case concerns 8 third-country nationals, mothers of EU citizens, who would have been forced to leave the EU. The main difference from Ruiz Zambrano was that the children of those mothers had fathers who were EU citizens, moreover, fathers were willing to take care of their offspring to some extent. The question before the ECJ was whether this fact altered the situation – that is, whether the children would still suffer a deprivation of the substance of their rights if their mothers were forced to leave the EU. The answer was yes, it would cause the deprivation of the substance of rights for the children. The ECJ stretched its interpretation so far that it concluded that “ it is important to determine, in each case at issue in the main proceedings, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent ”. 29 And continued to lay down aspects that must be taken into account when identifying such a state of dependency: the age of the child, the child’s physical and emotional development, the extent of their emotional ties to their parents, and the risk of endangering the child’s well being by forcing the non-citizen parent to leave. 30 So, did the ECJ remove some of the fog blurring the picture – did the ECJ formulate what the substance of the rights means? Yes, to some extent. The ECJ undisputably covered the right to family life (article 7 of the Charter) and the best interest of the child (article 24 of the Charter). The ECJ went even further, thus applying, in connection with minors, the principle of prioritization, instead of sameness (i.e.: the ECJ treats minors differently, giving them privileged status). 31 Here, I would like to emphasize that by invoking the Charter the Court departed from previous case law, namely from Dereci . But, in doing so, the ECJ did not give 27 LASHYN, S. The Aporia of EU Citizenship. The Liverpool law review. [online]. 2021, edit. 42, no. 3, p. 361–377. Available at: https://doi.org/10.1007/s10991-021-09279-y. p. 366. 28 Here, I take the view of Kochenov that “for the Court to apply cross-border market logic to finding the limits of EU citizenship is an impermissible assault on the very idea of human dignity” p. 43 in KOCHENOV, D. On Tiles and Pillars: EU Citizenship as a Federal Denominator. In: EU Citizenship and Federalism. Cambridge University Press, 2017. Available at: https://doi. org/10.1017/9781139680714.003. p. 3–82.

29 Chavez-Vilchez, paragraph 70. 30 Chavez-Vilchez, paragraph 71.

31 ELLEN, N. A Children’s Rights Perspective to Ruiz Zambrano and Chavez-Vilchez: An Examination in Light of Theory, Practice and Child Development Research. European journal of migration and law. [online]. 2021. Available at: https://doi.org/10.1163/15718166-12340095. p. 84.

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