C-200/02 Chen v Home Secretary 2004, officially known as Man Lavette Chen and Kunqian Catherine Zhu v Secretary of State for the Home Department, was a significant decision by the European Court of Justice. concerning nationality law and the right to reside in the EU.
This case revolved around Kunqian Catherine Zhu, a child born in Belfast, Northern Ireland, to Chinese parents who were temporary migrants residing and working in Wales, United Kingdom. Catherine's mother, Man Lavette Chen, chose Belfast as the birthplace because it would confer Irish nationality on her daughter upon birth. Under Irish law at the time, anyone born on the island of Ireland automatically gained Irish citizenship.
As Ireland is an EU Member State, Irish citizens are EU citizens who can freely reside in any EU countries, provided they have health insurance and will not become a burden on the public finances of the Member State of residence. The Chinese parents were wealthy enough to meet these requirements. As the United Kingdom was an EU Member State at that time, the child as an EU citizen should have the right to reside in the United Kingdom, and her parents should also be allowed to reside in the United Kingdom to look after her.
However, the British authorities denied the family's application for permits to reside permanently in the United Kingdom. The case was referred to the European Court of Justice, which ruled that Catherine Zhu, as an EU citizen by virtue of her Irish citizenship, had the right to reside anywhere in the EU. Denying residency to her parents, especially when she was unable to look after herself, would have conflicted with this basic right.
The judgment emphasised that a refusal to allow the parent, whether a national of a Member State or a national of a non-member country, who is the primary carer of a child with a right of residence, to reside with that child in the host Member State would deprive the child of basic rights as an EU citizen. Therefore, the carer must be in a position to reside with the child in the host Member State for the duration of such residence, as this is necessary for the child's genuine enjoyment of the substance of rights.
The case had significant implications for the rights of EU citizens and their family members, especially in cases involving the residence of third-country national parents of EU citizen children. It clarified the rights of EU citizens and their family members to reside in EU Member States and had an impact on immigration and citizenship policies in various EU countries.
In addition, this case had consequences for Irish citizenship law, as it led to the Twenty-seventh Amendment of the Constitution of Ireland, which restricted birth tourism by limiting the constitutional right to Irish citizenship for individuals born on the island of Ireland to the children of Irish citizens and some others whose parents are not Irish citizens but who meet the prescribed criteria.
You can learn more about this topic with our EU Law notes.
