Full AO1 walk-through

[Kim P. Nyberg]

AO1 Preface

In this thread, I will be compiling all EU judgments concerning family reunification involving children who are EU citizens. One judgment, accompanied by an explanation, will be posted each day. There are currently 21 judgments, and more will certainly be added on an ongoing basis.

Before I post the judgments, there are a few points to bear in mind. I will go through these points below.

The first point is that there are two situations in which an AO1 residence permit can be granted. The first situation is where the parents live together. That judgment was handed down in May 2022 and was accompanied by a change in practice announced by the Ministry of Immigration and Integration and the Ministry of Justice in October of the same year. The second situation is where the parents have separated. That ruling was handed down in May 2017, and here too a change in practice was introduced by the two aforementioned ministries.

The reason they fall under the same residence permit category is the best interests of the child and the fact that a minor child of the couple cannot be forced to leave the European Union as a whole. This means that the child cannot be forced to accompany the third-country national to their home country, as this would deprive the child of what is referred to as the “essence of Union citizenship”, as set out in the Treaty. TFEU forms part of the legal basis of the European Union and is an abbreviation for the Treaty on the Functioning of the European Union.

Article 20 TFEU reads in full as follows:

1. Citizenship of the Union is hereby established. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union is complementary to national citizenship and does not replace it.

2. Citizens of the Union shall enjoy the rights and be subject to the duties set out in the Treaties. They shall, in particular, have the following rights:

(a) they have the right to move and reside freely within the territory of the Member States

(b) they have the right to vote and to stand as candidates in elections to the European Parliament and in local elections in the Member State in which they reside, under the same conditions as nationals of that State

(c) in third countries where the Member State of which they are nationals is not represented, they shall enjoy protection from the diplomatic and consular authorities of any Member State on the same terms as nationals of that Member State

(d) they have the right to petition the European Parliament and to make representations to the European Ombudsman, as well as to the institutions and advisory bodies of the Union, in any of the languages of the Treaties and to receive a reply in the same language.

These rights shall be exercised subject to the limitations and under the conditions laid down in the Treaties and in measures adopted for their implementation.

End of quote.

It is therefore paragraph 1 of the article in particular that is relevant here, and to a lesser extent paragraph 2(a). In other words, every national of a Member State is not merely a national of that Member State, but is also a citizen of the Union. The word ‘every’ thus implies that even newborns can be regarded as citizens of the Union, with the rights that this entails, provided that these children have either ‘inherited’ citizenship from one of their parents or have been granted citizenship in accordance with the legislation of a Member State.

The next point concerns the confusion that arises when something is enshrined in the EU Treaties, but the residence permit itself is issued under a provision of national immigration law. A great many people in this country have experienced such confusion first-hand, in the form of a summons to an integration interview at the local job centre. The summons itself is written in a rather unfriendly tone, and the letter makes it clear that there is both an obligation to attend the meeting and an obligation to sign an integration contract. If you fail to attend and/or refuse to sign the integration contract, they threaten that this will have consequences for your residence permit.

Let’s take a step back and look at this objectively. The job centres apparently take the view that, because the residence permit itself is issued under a section of the Aliens Act, the third-country national in question is covered by the Integration Act, and therefore there is both an obligation to attend and an obligation to sign the aforementioned contract.

This is both right and wrong. It is true that an AO1 residence permit is issued under a section of the Aliens Act. To be precise, Section 9(4), which stipulates that “Upon application, a residence permit may be granted to a foreign national who is a family member of a Danish citizen, in situations covered by Article 20 of the Treaty on the Functioning of the European Union.” There is no mention of the Integration Act here, and generally speaking, EU rules and the Integration Act have absolutely nothing to do with one another. It is therefore incorrect when they claim that the person in question is subject to the Integration Act.

In practice, this means that, in principle, they can summon people to these integration interviews as often as they like. And threaten them with all manner of things if their orders are not followed to the letter. It simply has no legal weight, and so it is entirely up to the individual couples whether they wish to attend these interviews and whether they wish to sign the contract. You’re under no obligation to do any of this, so in principle you can tear the letter in half and bin it if you like. I can reassure you that the threat of consequences for your residence permit is unfounded. The child’s best interests always come first. Regardless of the fact that the authorities would prefer administrative formalities to take precedence.

But isn’t it still a good idea to turn up for these interviews? Yes, it actually might be, if the sole purpose is to enrol in a language school. That enrolment must be done through the local authority. However, there is no language requirement in EU regulations, and therefore enrolment in a language school cannot be described as an obligation. It would only be an obligation if you are here under the national family reunification rules.

The next question is: if I do attend the interview, am I then obliged to sign the contract? Again, the answer is no. You are free to do so if you wish, but it is entirely your own decision whether you do or not. Refusing to sign the contract will have absolutely no consequences for your residence permit.

The third point to bear in mind is that, in a case from May 2025, the Court of Justice ruled that a residence permit based on having a child in common has the same legal status as an EU residence card granted under The Citizenship Directive (Article 10 of Directive 2004/38). This means two things: firstly, that the concept of ‘procedural residence’ does not exist under the AO1 scheme; and secondly, that the residence permit has a declaratory effect and is therefore not constitutive of rights. Put simply, this means that the third-country national parent has rights in this country from the moment the child is born (if the child is born in this country), or from the moment the family arrives in this country (if the child is born abroad). These rights therefore apply regardless of whether the third-country national has applied for a residence permit at that point or is yet to do so. In principle, these rights include the right to work in this country, the right to attend language school and, in general, the right to lead a completely normal family life here. In fact, in a judgment not included in this series, the Court of Justice has ruled that it is never too late to submit an application to the competent authorities when one is covered by an EU rule. And one is covered by such a rule when one is the parent of a child with EU citizenship, as this is based on the aforementioned article of the Treaty.

So, can you simply choose not to apply for such a residence permit? In principle, yes. Conversely, it would probably be unwise not to apply for it, because if one day you are stopped by the police on the street or detained by other authorities, you will, of course, be released more easily and quickly if you can produce your residence permit, rather than being held at the police station for several hours, whilst the police investigate your right of residence and cross-check with the Danish Immigration Service, which may not be familiar with you.

A fourth point to bear in mind is that if both parents and the child are third-country nationals – that is, none of them hold citizenship of an EU country – then they CANNOT use this scheme. To be eligible, it is an absolute requirement that one parent is an EU citizen or that the child is.

A fifth point is that if you already hold a different type of residence permit, for example an FA1 and any extensions thereof, and you have a child together, you can ‘switch over’ to an AO1. However, this will only be possible when the residence permit you already hold is due for renewal anyway. In this case, you simply inform the Danish Immigration Service that you have this child and enclose the child’s birth certificate. The Danish Immigration Service will then, on its own initiative, offer you an AO1 residence permit. All you need to do is accept the offer.

There are no fees for an AO1 application, and once you have been granted the residence permit (provided you were previously covered by a different scheme), the sponsor is entitled to have their entire bank guarantee released again. The first residence permit is valid for two years, the next for four years, and each subsequent one for six years at a time. You can obtain a permanent residence permit if and when you meet the general conditions for this. If you have not been granted a permanent residence permit before your child turns 18, you will, in principle, either have to return to your home country or apply for spousal reunification (form FA1). If you apply for spousal reunification at this stage, you will not usually be required to provide a bank guarantee, as you have already been in the country for a number of years. However, this depends on how long you have lived here previously.

One final point to bear in mind is that if you are already subject to the rules of The Citizenship Directive, that is, if you have exercised your treaty-based right to free movement by moving to another EU/EEA country and then returning, it is by no means worthwhile to make use of the AO1 scheme, as you are already covered by EU rules.

Once the 21 judgments have been published, I will put together a ‘What we know, and what we still need answers to’ section, just as is common on the websites of the mainstream media in selected cases. Subsequent judgments will be published as and when the Court of Justice has finalised them.

The first judgment will be published tomorrow. Q&A are welcome.

[Kim P. Nyberg]

Case C-200/02, Zhu and Chen, dated 19 October 2004

We begin with the summary of the judgment, which reads as follows:

“Article 18 EC and Directive 90/364 on the right of residence confer on a minor child who is a national of a Member State, who is covered by a health insurance scheme and who is dependent on a parent who is himself a national of a third country, whose resources are sufficient to ensure that the child does not become a burden on the public finances of the host Member State, a permanent right of residence in the host Member State. In such a case, the parent who actually cares for the child may, pursuant to the same provisions, reside with the child in the host Member State.

In this regard, the condition relating to sufficient resources, as set out in Directive 90/364, cannot be interpreted as meaning that the minor national must personally have the necessary resources at his or her disposal, without being able to rely on resources belonging to a family member. Such an interpretation would thus add a requirement concerning the origin of the resources to that condition, which constitutes a disproportionate interference with the exercise of the fundamental right to freedom of movement and residence under Article 18 EC, since it is not necessary to achieve the objective pursued, namely the protection of the public finances of the Member States.

Furthermore, the application of the Community provisions in question cannot be refused to the persons concerned on the ground that the parent supporting the child, by taking up residence in a Member State has created a situation in which the unborn child could acquire nationality in another Member State with a view to the child and the parent themselves subsequently obtaining a right of permanent residence. The determination of the criteria for the acquisition and loss of nationality thus falls, under international law, within the competence of the Member States, provided that they comply with Community law, and it is not for a Member State to limit the effects of the grant of nationality by another Member State by imposing additional conditions for the recognition of that nationality where the exercise of the fundamental freedoms enshrined in the Treaty is at stake.”

End of quote.

The aforementioned Article 18 EC is now Article 20 TFEU. The directive referred to has expired and its provisions have been incorporated into the current Citizenship Directive 2004/38.

It is clear from paragraph 11 of the judgment that the mother deliberately travelled to Northern Ireland to give birth to her second child, who was named Catherine.
The mother had understood that, if she did so, Catherine could obtain Irish citizenship, even though neither of them had ever been to the Republic of Ireland. The Republic’s law on citizenship at that time was such that the mere fact of being born on the island shared by the Republic of Ireland and the British province of Northern Ireland conferred the right to become an Irish citizen. This meant that little Catherine, as a newborn, could exercise her treaty-enshrined right to freedom of movement, and her mother could derive rights from this to settle in Wales.

The British authorities were furious. At first, they argued that it was the child who had to have sufficient means to support herself in the UK, and how on earth could such a small child possibly have that? ‘She can’t work, after all,’ was the reasoning. The court dismissed this argument. The decisive factor is not who has the means. What matters is that the means are available, and in this case they can easily be provided by the parent or parents.

‘OK, but we will not accept that the child has been granted Irish citizenship,’ the British authorities then replied. ‘So we’re just imposing a few extra conditions.’

- “Shame on you,” replies the Court. You are obliged to respect whatever citizenship a person may hold, regardless of where they hold it, and no further conditions may be imposed on their residence than those which other EU citizens are required to fulfil, when this person – even if they are an infant – has been granted citizenship by another Member State. So you must refrain from doing so, the Court admonishes.

What can we infer from this judgment? We can infer that even newborn EU citizens can enjoy the full rights set out in the EU Treaties. This does not only begin when the child turns 18. And we can conclude that the child’s parents therefore have derived rights to reside in the same country as the child, even though it is actually the parents themselves who choose where they wish to settle within the Union. Article 20 TFEU explicitly states that ‘every national of a Member State’ enjoys the rights enshrined in the Treaty. The word every is emphasised, because by virtue of being nationals of a Member State, they are also citizens of the Union.

The requirement for Member States to respect other countries’ granting of nationality was established some years earlier in the Micheletti judgment. That judgment concerned Spain’s refusal to recognise a person’s dual nationality, in this case Micheletti, who held both Italian and Latin American nationality. Spain argued at the time that it only recognised the most recently acquired nationality, which in Micheletti’s case was his Argentine nationality. Spain therefore did not regard him as a Union citizen. However, the Court of Justice ruled that all Member States must immediately recognise all the nationalities held by a person, without adding to or subtracting from them.

It is this very point that the British authorities are attempting to challenge in the Zhu and Chen case: namely, to subtract something. The implication being that they do not need to recognise Catherine’s Irish citizenship as valid, primarily because, in the British authorities’ view, it was obtained fraudulently. But the Court of Justice is not taking the bait.

But hang on. In the summary above, it states no fewer than twice that this entitles the third-country parent to a permanent residence permit. So why isn’t this granted in the AO1 cases? That is actually a very good question, one to which I cannot provide an answer. We will have to see what the Court of Justice has to say on the matter later in the series.

In all the subsequent judgements, the Court of Justice continues to elaborate on the third-country parent’s derived rights to live with the child within the territory of the Union. The next case we’ll look at will later be recognised as established case law.

Link to Advocate General Tizzano's Opinion: https://eur-lex.europa.eu/legal-content ... 2002CC0200

Link to the Judgment in case C-200/02, Zhu and Chen: https://eur-lex.europa.eu/legal-content ... 2002CJ0200