Ruling on Chinese woman 'vindicates new law'

Changes to Ireland’s citizenship laws have been vindicated by a European Court ruling on a Chinese woman who gave birth in Belfast to gain residency, it was claimed today.

The Irish Government said the court’s decision to overturn Britain’s denial of residency to Man Levette Chen showed the need for its controversial referendum last June.

A Department of Justice spokeswoman said: “Today’s decision puts beyond doubt the fact that there is significant advantage to be gained by organising the birth of a child on the island of Ireland – since Irish citizenship law can be used to circumvent the immigration controls of the UK, or any other EU member state.”

Last June, the Government introduced a referendum to abolish the automatic right to citizenship for any person born on the island.

It used Ms Chen’s case to argue that the Irish citizenship laws would make the country a “back door” for immigrants wishing to gain EU citizenship. The referendum was passed by a four to one majority.

Following today’s ruling, the Coalition Against the Deportation of Irish Children (CADIC) said the Government must now halt the deportation of the 9,500 non-national parents whose children were born in Ireland prior to the referendum.

“It is clear Justice Minister Michael McDowell has no choice but to halt the deportations and review the legality of what he’s doing,” said spokeswoman Aisling Reidy.

CADIC, which represents 22 voluntary groups, said more than 300 non-national parents of Irish children had been deported since then.

“They must all be called into question and tested against the Chen judgment now,” said Ms Reidy.

European Court judges acknowledged that Man Levette Chen deliberately had her child in Belfast to win UK residency rights for herself.

But that did not entitle the UK Government to refuse to let her – or her daughter Catherine – stay.

The Luxembourg court was told that Mrs Chen was aware that giving birth in Britain would not give her new baby automatic residency rights because of the terms of the British Nationality Act.

But she also knew that choosing Northern Ireland guaranteed Irish nationality, which is granted to anyone born anywhere on the island of Ireland.

Once that was achieved, the plan was to take her Irish daughter to live in the UK under EU rules which allow nationals of one member state – such as Ireland - the right to settle in another.

The plan was hatched because Mrs Chen and her businessman husband already had a son and could not have another in their own country under China’s “one-child” rule.

So when she was six months pregnant with her second baby in mid-2000, she moved to Belfast and gave birth to Catherine.

As anticipated, the child legitimately received an Irish passport – but the UK authorities unexpectedly challenged the right of either mother or daughter to live in the UK.

The Home Office argued that as Catherine was only eight months old at the time, she could not exercise any EU rights.

Even if she could, argued the British government, Mrs Chen could not live in the UK because the law only allowed “dependent relatives” to join their family – and Mrs Chen was far from dependent on her baby.

On the contrary, Catherine was totally dependent on her non-EU mother.

The case was passed to the European Court by an immigration tribunal after the Chens claimed their treatment was a breach of EU rules.

British government lawyers insisted the UK is entitled to act to stop individuals improperly taking advantage of the EU law – or using EU law as a cover to illegally circumvent national legislation.

British government papers submitted to the court stated: “Mrs Chen’s conduct in travelling to Belfast constitutes an attempted abuse in that it was a scheme by which a national of a non-member state wishing to reside within (the UK) organises her affairs so as to give birth to a child in part of (the UK) to which (Ireland) applies nationality rules.”

The European Commission backed the UK Government stand, arguing that the family’s interests had to be balanced against the UK’s interests in controlling immigration.

But the judges ruled today that daughter Catherine, as an EU national, has the right to stay in the UK, and that her mother must have that right too.

They said: “To refuse Mrs Chen a right to reside with her daughter in the UK would render the daughter’s right of residency totally ineffective.

“For Catherine to be able to enjoy her right of residence, she must, as a young child, be entitled to be accompanied by her mother, who is her carer.”

The judgment said: “With regard to the fact that Mrs Chen’s move to Ireland was expressly intended to enable the child she was expecting to acquire Irish nationality, the Court makes clear that the UK cannot reject Catherine’s application for a residence permit on the sole ground that her acquisition of Irish nationality was intended to secure a right of residence under Community law for (her mother).”