THE BEST INTERESTS OF THE CHILD PRINCIPLE IN CJEU CASE-LAW ON FREEDOM OF MOVEMENT AND RESIDENCE OF UNION CITIZENS: A NEW SAFEGUARD FOR VULNERABLE PERSONS?
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Abstract
This article explores the evolving role of the best interests of the child principle in EU citizenship and free movement case-law, as interpreted by the Court of Justice of the European Union (CJEU). The principle, enshrined in Article 24(2) of the Charter of Fundamental Rights, has traditionally been applied in asylum and migration cases, but its scope is expanding to include free movement scenarios, particularly in cases involving primary caregivers of minor EU citizens. The article analyses two strands of case-law: the genuine enjoyment doctrine, which grants residence rights to third-country national parents, and the recent judgment in Case C-709/20 CG, which extends social assistance rights to economically inactive mobile EU citizens with dependent children. This article explores whether and, if so, to what extent, the invocation of the Charter can serve as an appropriate measure for granting residence and equal treatment rights in the general context of freedom
of movement of minor EU citizens and their caregivers. The article concludes that the invocation of the primacy of the interests of the child has the potential to strengthen the rights of EU citizen children and their caregivers, but also raises concerns about the fragmentation of protection standards and the potential for unequal treatment.
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