Case C-700/26, Aspebrink – what a withheld name costs a child
The general principle prohibiting fraud and abuse of rights is one of the oldest in EU law. This reference asks what it can do when the person who would lose the right is not the person who committed the fraud.
Facts
SA is in proceedings against the Migrationsverket before the Kammarrätten i Stockholm sitting as the Migrationsöverdomstolen (Migration Court of Appeal). It has been established that SA withheld information relevant to the question of who is to be regarded as the father of SA’s child. The referring court asks whether that finding permits a derived right of residence under Article 20 TFEU to be refused, either on the basis of the general principle of EU law prohibiting fraud and the improper use of rights, or on the public-policy exception. Two questions have been referred. (Aspebrink is a fictitious case name assigned under the Court’s anonymisation practice; it does not correspond to any party.)
Questions Referred
According to the Official Journal notice, the Kammarrätten i Stockholm – Migrationsöverdomstolen asks:
1. When applying Article 20 TFEU, where it has been established that a third-country national has withheld information relevant to the question of who is to be regarded as the father of that third-country national’s child, is it possible to refuse to grant that third-country national a derived right of residence on the basis of the general EU law principle prohibiting fraud and the improper use of rights?
2. If the answer to the first question is in the negative, is it possible, when applying Article 20 TFEU in the circumstances referred to above, to rely on an exception to the derived right of residence in the interests of upholding public policy and safeguarding public security, in particular upholding public policy?
Sources
OJ notice C/2026/4399 (EUR‑Lex) · Case file on CURIA · Treaty on the Functioning of the European Union, Article 20
Comment
Fraud normally forfeits what fraud obtained. The difficulty here is that the right in question was never the applicant’s to obtain. A derived right of residence under Article 20 TFEU is recognised because refusing it would compel a Union citizen — here a child — to leave the territory of the Union and lose the substance of the rights attaching to citizenship. The parent is the mechanism, not the beneficiary. Withdrawing the right as a sanction against the parent’s conduct produces its effect on someone who did nothing.
The analytical framework the Court laid down in Case C‑82/16, K.A. (ECLI:EU:C:2018:308) is what stands in the way. There the Court held that Article 20 TFEU precludes a practice of refusing to examine an application on a formal ground without examining whether there exists a relationship of dependency between the Union citizen and the third-country national of such a nature that, in the event of refusal, the Union citizen would in practice be compelled to leave the territory of the Union as a whole. That examination is about the child’s actual situation. A parent’s dishonesty in an earlier procedure does not make the child less dependent, and it is not obvious how the anti-fraud principle can be applied to a right whose whole purpose is to protect a third party.
There is a narrower reading available, and it may be where the Court lands. The withheld information concerns paternity — which is to say, it concerns the very facts on which the dependency assessment rests. If the true father is present, capable of caring for the child and himself lawfully resident, the child may not be compelled to leave the Union at all, and the condition for the derived right is simply not met. On that reading the answer to question 1 is not “fraud forfeits the right” but something more modest and more useful: concealment that prevents the authorities from establishing the facts entitles them to draw conclusions about those facts. That disposes of many cases without importing a punitive doctrine into a child-protective right.
Question 2 is the weaker of the two and reads like a fallback the court expects to lose. The public-policy exception requires a genuine, present and sufficiently serious threat to a fundamental interest of society, assessed on the individual’s own conduct and subject to proportionality. Lying to an immigration authority is misconduct, but treating it as a public-policy threat would stretch a narrowly construed derogation to cover ordinary administrative dishonesty — and it would do so in exactly the class of case where the cost falls on a Union citizen child.
The court sent a companion reference the same day, C‑701/26, Korsfalk, about a parent whose identity simply cannot be established. Read as a pair, they ask the same question at two levels of fault: what may a Member State do when it does not know who the parent is, and what may it do when the parent made sure it would not find out.