Is there a route to residence for parents of minor EU citizens in Portugal?
If your child is a citizen of a European Union country and is a minor, you may be entitled to obtain legal residence in Portugal as their parent — even if you are a national of a non-EU country. This should be the correct interpretation of Article 15 of the Law on European Union Citizens (Law No. 37/2006), which applies to whoever effectively takes care of the minor.
In practice, however, the Agency for Integration, Migration and Asylum (AIMA) has refused some of these applications based on a purely literal reading of the provision. In this article, we explain why we believe this refusal has no solid basis under European Union law.
Who is entitled to this residence card?
Article 15 of the Law on European Union Citizens and their Family Members provides for the issuance of a residence card to family members of European Union citizens who are nationals of third countries.
However, the concept of “family member” set out in Article 2 includes, among others, direct ascendants who are dependent on the EU citizen — but does not expressly cover the reverse situation, in which it is the minor EU citizen who is dependent on their parent.
A purely literal interpretation could therefore lead to the conclusion that such a parent is not covered by the residence scheme for parents of European citizens. We believe, however, that this reading is not compatible with European Union law.
What EU law says about parents of minor EU citizens
Minor European Union citizens hold the rights conferred by the Treaties, including the right to free movement and residence within the territory of the Member States. The effective exercise of these rights naturally depends on the presence and assistance of the person who takes care of them.
In this context, the right of residence granted to the parent is not an autonomous right, but a derived right necessary to ensure that the minor’s rights do not become merely theoretical or illusory.
This interpretation finds clear support in European Commission Communication C/2023/1392, of 22 December 2023, on the right of free movement of European Union citizens and their families. The Commission acknowledges that third-country nationals who take care of minor EU citizens should benefit from a right of residence in the host Member State, also accepting the application, by analogy, of the relevant provisions of Directive 2004/38/EC.
The same position is supported by the case law of the Court of Justice of the European Union. In the Zhu and Chen judgment (Case C-200/02), the Court held that a parent who effectively takes care of a minor EU citizen may benefit from a derived right of residence. This right applies where necessary to allow the minor to effectively exercise their own right of residence.
Why AIMA refuses some applications — and why we disagree
Despite this legal framework, AIMA has not been accepting appointment requests under Article 15 in certain situations where the applicant is the parent, a third-country national, of a minor European Union citizen.
In our view, this practice is not consistent with the systematic interpretation of European Union law and the applicable national legislation.
This issue is equally relevant when the minor is a Portuguese citizen. Law No. 23/2007 (the Foreigners Law applicable to third-country nationals) provides a specific regime for parents of Portuguese minors. However, Article 3(5) of the Law on European Union Citizens and their Family Members establishes that the rules applicable to family members also extend to family members of Portuguese citizens.
Our position – Residence for Parents of Minor EU Citizens
We believe there are solid legal grounds to support the issuance of a residence card under Article 15 in favour of a third-country national parent who effectively takes care of a minor European Union citizen.
More than a merely possible interpretation, we maintain that this is the correct and systematic reading of the regime when Portuguese legislation is analysed together with Directive 2004/38/EC, the European Union Treaties, the case law of the Court of Justice and the position expressed by the European Commission.
What to do if your application is refused
If AIMA issues a refusal, the specific case should be reviewed and the appropriate administrative or judicial remedies considered to secure recognition of the right of residence.
Each situation has its own particularities — the minor’s nationality, the parent’s country of origin, or the existence of prior AIMA decisions — which can influence the best strategy to pursue.
Frequently asked questions about Residence for Parents of Minor EU Citizens
Do I need a lawyer to apply for this residence card? It is not a legal requirement, but it is advisable, especially since AIMA has frequently refused applications on this basis. Legal support helps ensure the process is prepared correctly and anticipates a possible refusal.
What can I do if AIMA refuses my appointment request? You can challenge the decision through the appropriate administrative or judicial remedies, depending on the specific case. It is important to gather all documentation proving that you effectively take care of the minor.
Does this right also apply to parents of Portuguese minors? Yes. Under Article 3(5) of the Law on European Union Citizens and their Family Members, the rules applicable to family members of EU citizens also extend to family members of Portuguese citizens. In this case, however, specific domestic legislation applies under Law No. 23/2007, of 4 July. A further question may also arise regarding the fact that domestic legislation provides for a residence permit valid for a shorter period than the one that would result from the application of Article 15.
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