Chen case
Encyclopedia
Kunqian Catherine Zhu, also known as Catherine , was born on 16 September 2000 in Belfast
to Chinese
parents who were living in Wales and working for a Chinese firm in Britain. The child's mother, Mrs Chen, had deliberately selected Northern Ireland
as a birthplace for her second child, whose birth in China
would have contravened China's One Child Policy, and by being born on the island of Ireland would be entitled an Irish passport. As Catherine's parents were only temporary migrants, she was not eligible for British citizenship
simply by virtue of birth in the United Kingdom
.
However, by being born in Belfast, Catherine was entitled to Irish citizenship
, and Mrs Chen obtained a passport and hence Irish citizenship for her, with the intention of using the child's status as a European Union
national to move the family permanently to Cardiff, Wales
. However, British authorities rejected the Chens' applications for permits to reside permanently in Britain. On appeal, the Immigration Appellate Authority referred the decision to the European Court of Justice
, which ruled that, as a citizen of the European Union, Catherine Chen had a right under Article 18 of the EC Treaty to reside anywhere in the EU, and that denying residency to her parent(s) at a time when she is unable to look after herself would conflict with this basic right.
Advocate General
Tizzano stated that it was not an abuse of EU rights to take advantage of the Irish citizenship rules because it is for the Member States and not the EU to decide whether to confer citizenship on a person.
The court ruled:
This case and similar examples led to the Twenty-seventh Amendment of the Constitution of Ireland
, making it constitutionally possible in future for the Republic of Ireland
to refuse citizenship to individuals who did not have an Irish parent.
Belfast
Belfast is the capital of and largest city in Northern Ireland. By population, it is the 14th biggest city in the United Kingdom and second biggest on the island of Ireland . It is the seat of the devolved government and legislative Northern Ireland Assembly...
to Chinese
China
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
parents who were living in Wales and working for a Chinese firm in Britain. The child's mother, Mrs Chen, had deliberately selected Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
as a birthplace for her second child, whose birth in China
China
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
would have contravened China's One Child Policy, and by being born on the island of Ireland would be entitled an Irish passport. As Catherine's parents were only temporary migrants, she was not eligible for British citizenship
British nationality law
British nationality law is the law of the United Kingdom that concerns citizenship and other categories of British nationality. The law is complex because of the United Kingdom's former status as an imperial power.-History:...
simply by virtue of birth in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
.
However, by being born in Belfast, Catherine was entitled to Irish citizenship
Irish nationality law
Irish nationality law is the law of the Republic of Ireland governing citizenship. A person may be an Irish citizen through birth, descent, marriage to an Irish citizen or through naturalisation. Irish nationality law is currently contained in the provisions of the Irish Nationality and Citizenship...
, and Mrs Chen obtained a passport and hence Irish citizenship for her, with the intention of using the child's status as a European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
national to move the family permanently to Cardiff, Wales
Cardiff
Cardiff is the capital, largest city and most populous county of Wales and the 10th largest city in the United Kingdom. The city is Wales' chief commercial centre, the base for most national cultural and sporting institutions, the Welsh national media, and the seat of the National Assembly for...
. However, British authorities rejected the Chens' applications for permits to reside permanently in Britain. On appeal, the Immigration Appellate Authority referred the decision to the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
, which ruled that, as a citizen of the European Union, Catherine Chen had a right under Article 18 of the EC Treaty to reside anywhere in the EU, and that denying residency to her parent(s) at a time when she is unable to look after herself would conflict with this basic right.
Advocate General
Advocate General
An Advocate General is a senior law officer of a country or other jurisdiction, usually charged with advising the courts or Government on legal matters.-India:In India, an Advocate General is a legal adviser to a state government...
Tizzano stated that it was not an abuse of EU rights to take advantage of the Irish citizenship rules because it is for the Member States and not the EU to decide whether to confer citizenship on a person.
The court ruled:
Article 1(2)(b) of Directive 90/364, which guarantees ‘dependent’ relatives in the ascending line of the holder of the right of residence the right to install themselves with the holder of the right of residence, regardless of their nationality, cannot confer a right of residence on a national of a non-member country in Mrs Chen’s situation either by reason of the emotional bonds between mother and child or on the ground that the mother’s right to enter and reside in the United Kingdom is dependent on her child’s right of residence.
According to the case-law of the Court, the status of ‘dependent’ member of the family of a holder of a right of residence is the result of a factual situation characterised by the fact that material support for the family member is provided by the holder of the right of residence.
In circumstances such as those of the main proceedings, the position is exactly the opposite in that the holder of the right of residence is dependent on the national of a non-member country who is her carer and wishes to accompany her. In those circumstances, Mrs Chen cannot claim to be a ‘dependent’ relative of Catherine in the ascending line within the meaning of Directive 90/364 with a view to having the benefit of a right of residence in the United Kingdom.
On the other hand, a refusal to allow the parent, whether a national of a Member State or a national of a non-member country, who is the carer of a child to whom Article 18 EC and Directive 90/364 grant a right of residence, to reside with that child in the host Member State would deprive the child’s right of residence of any useful effect. It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer and accordingly that the carer must be in a position to reside with the child in the host Member State for the duration of such residence.
This case and similar examples led to the Twenty-seventh Amendment of the Constitution of Ireland
Twenty-seventh Amendment of the Constitution of Ireland
The Twenty-seventh Amendment of the Constitution of Ireland provided that children born on the island of Ireland to parents who were both non-nationals would no longer have a constitutional right to citizenship of the Republic of Ireland...
, making it constitutionally possible in future for the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
to refuse citizenship to individuals who did not have an Irish parent.
See also
- Articles 2 and 3 of the Constitution of IrelandArticles 2 and 3 of the Constitution of IrelandArticle 2 and Article 3 of the Constitution of Ireland were adopted with the constitution as a whole on 29 December 1937, but completely revised by means of the Nineteenth Amendment which took effect on 2 December 1999...
- Irish nationality lawIrish nationality lawIrish nationality law is the law of the Republic of Ireland governing citizenship. A person may be an Irish citizen through birth, descent, marriage to an Irish citizen or through naturalisation. Irish nationality law is currently contained in the provisions of the Irish Nationality and Citizenship...
- British nationality lawBritish nationality lawBritish nationality law is the law of the United Kingdom that concerns citizenship and other categories of British nationality. The law is complex because of the United Kingdom's former status as an imperial power.-History:...
- British nationality law and the Republic of IrelandBritish nationality law and the Republic of IrelandThis article concerns British nationality law in respect of citizens of what is now the independent state of Ireland, which was known in the United Kingdom as "Eire" between 1937 and 1949, and which was the Irish Free State between 1922 and 1937...
- Common Travel AreaCommon Travel AreaThe Common Travel Area is a passport-free zone that comprises the islands of Ireland, Great Britain, the Isle of Man and the Channel Islands. The area's internal borders are subject to minimal or non-existent border controls and can normally be crossed by Irish and British citizens with only...
- Citizenship of the European UnionCitizenship of the European UnionCitizenship of the European Union was introduced by the Maastricht Treaty . European citizenship is supplementary to national citizenship and affords rights such as the right to vote in European elections, the right to free movement and the right to consular protection from other EU states'...