The opinion of the Advocate-General in the Chen case has implications for the 11,000 families with Irish-born children awaiting deportation, writes Carol Coulter, Legal Affairs Correspondent
It is fortunate for the Government that the Advocate General of the European Court of Justice chose to issue his judgment before the referendum on citizenship, as it bolsters the Government's arguments.
The opinion of the Advocate General is followed by the court in 70 - 80 per cent of cases, so it is likely that the court will rule next autumn that non-EU citizen parents of an Irish-born child can live legally in any EU country by virtue of the Irish citizenship of the child.
Minister for Social and Family Affairs Ms Coughlan said yesterday that this would be seen as a back door into the EU, arguing that the proposed referendum was therefore necessary.
In announcing the planned referendum, the Government drew attention to the fact that this case was pending, pointing out that it could mean that those not entitled to live in the EU could establish such a right by giving birth to a child in Ireland.
Ms Chen, who went to the UK when she was six months pregnant, obtained legal advice there that she could establish a right to residency by giving birth to her child in Belfast. She travelled to Belfast in July 2000 and had her baby, Catherine, there in September, and then returned to the UK.
When the British Home Secretary ruled she did not have a right to live in the UK she appealed this decision to the European Court of Justice under EU law. The preliminary judgment published yesterday was in her favour.
The Government has argued, and been supported in its argument by the UK government, that this outcome was never intended in the Belfast Agreement, which committed the Government to amending the Constitution to give a right to Irish citizenship to everyone born in the island of Ireland. Previously, the right existed only in law.
The irony is that, as things stand, the preliminary judgment from the European Court would mean that the non-EU citizen parents of an Irish-born child can live anywhere in the EU except in Ireland.
According to leading constitutional lawyer Dr Gerard Hogan SC, European law cannot be invoked in matters that are wholly internal to this State.
This means that the entitlement to live in the EU cannot be invoked in contesting the deportation of Irish-born children and their parents from Ireland, which became legal following a Supreme Court judgment last year.
The European Court of Justice ruling is therefore of little help to the 11,000 families threatened with deportation from this State following this ruling.
What it does mean, however, is that they will be safe from deportation to their country of origin if they move to Northern Ireland, Britain, or, indeed, any other country in the EU.
This makes urgent the regularisation of the the situation of these 11,000 families, according to NUI Galway law lecturer Mr Donncha O'Connell.
"The difficulty with this opinion, if it is confirmed by the court, is that it incentivises exile within the Union for those who have fortuitously gained Irish citizenship," he said.
However, for the Government the immediate focus is likely to be on the implications of this judgment for the proposed constitutional referendum.
If passed, it will mean that the non-EU citizen parents of a child born in Ireland will have to have lived in Ireland for three out of the previous four years in order for that child to obtain Irish citizenship.
Thus another Ms Chen would be unable to claim Irish citizenship for her child, and use that as a basis to claim residency in the UK or anywhere else in the EU.