A Chinese mother and her Irish-born daughter are entitled to live in any EU country on account of the child's Irish citizenship, according to a preliminary judgment yesterday by the European Court of Justice.
Ms Man Levette Chen went to Belfast in 2001 to give birth to a daughter, Catherine, after a lawyer advised her that the child would acquire Irish nationality. Ms Chen had already given birth to a son in China in 1998 and having a second child would have put her at odds with China's "one child policy".
Ms Chen and her daughter now live in Cardiff but the British authorities have rejected their application to reside permanently in the UK. When Ms Chen appealed the decision, the British immigration appeals authority asked the European Court of Justice to determine if, as an Irish national and EU citizen, Catherine was entitled to remain in Britain and if Ms Chen should be allowed to remain with her.
The Advocate General, whose advice is usually followed by the court, said yesterday that Catherine enjoyed the right of free movement and residence within the EU and that the UK action constituted discrimination on the grounds of nationality.
He said that, although the child's right to remain in Britain could not be based on the need to avail of medical and childcare services, the family had enough resources to ensure that she would not be a burden on the state.
"Consequently, she can claim a right of residence either by virtue of the directive concerning rights of movement and residence for persons who are not economically active or by virtue of the provision of the Treaty which provides for freedom of movement and of residence as a fundamental right of citizens of the Union," he said.
European law allows the parent responsible for a child who enjoys the right of residence in a member-state to reside with them.
"If Mrs Chen were to exercise a right of establishment in the United Kingdom in the name and on behalf of her daughter, but were then herself denied the right to reside in that state, that outcome would be manifestly contrary to the interests of her daughter and would contravene the principle of respect for family unity: in such a case, the young child would automatically be abandoned. Therefore, her mother must be able to invoke a right of residence deriving from that of her young child, because otherwise the latter's right would be entirely deprived of any effectiveness. Being unable to remain alone in the United Kingdom, Catherine would ultimately be unable to enjoy the right of residence conferred on her by the Treaty," the Advocate General said.
He observed that a mother who was a citizen of a third country would be entitled to remain with her daughter in the UK if her daughter were a British citizen.
"If, in Catherine Chen's case, a different course of action were followed, there would be a difference of treatment not justified by any objective reason."
The Advocate General's opinion, although usually followed, is not binding on the court and a judgment will follow later this year.