Luxembourg, 19/10/2004 (Agence Europe) - In the European Court of Justice's Chen ruling, whereby the British authorities were opposing the right of residency of a child of Chinese origin to stay in the United Kingdom, it was decided that a child from the EU should have the same rights as an adult when it comes to residency in the EU if it had sickness insurance that did not make the state liable for its healthcare. The Court also indicated that its mother, who is not an EU national, had the right to remain in the United Kingdom because not granting her this right would render her daughter's right of residency totally ineffective, and in other cases where the child or baby could not live with their mother.
In 2000 a Chinese woman Man Lavette Chen gave birth in Northern Ireland and was therefore beneficiary of the provisions included in a law from the Republic of Ireland, which grants all children born on the Irish hinterland, including Northern Ireland, Irish nationality. (The recent referendum for changing the constitution to stop this legal principle took place when this case began: Editor's note). The child, an eight-month old baby, Kunquian Catherine Zhu and her mother went to Cardiff in Wales where they requested leave to remain, which was refused by the British authorities. The refusal was based on the fact that the child did not have its own personal resources and was financially dependent on its mother.
The Court indicates that the 1990 directive on "right to residency" stipulates that Member State nationals should have the necessary resources but that this provision does not include any demand about where these nationals were from. The Court explained that the refusal to allow the mother to stay with the child in a host Member State would render her daughter's right of residency totally useless. Man Lavette Chen therefore has the right of indefinite residency in the United Kingdom like her daughter.
Ms Chen said that her daughter had lost her Chinese nationality because she was born in Northern Ireland; her husband, a businessman made frequent trips to the United Kingdom and was the director of a Chinese company in which he was the majority shareholder, which allowed him to live in the United Kingdom comfortably; that she had a sickness insurance scheme for her daughter and herself so that they were not dependent on the state if they were ill. These two last conditions are demanded of all EU nationals wishing to set up in another Member State.
The Court also rejected the British government's argument that Ms Chen had deliberately given birth in Northern Ireland to abusively take advantage of standards in Community law.
The response from European judges: each Member States defines itself - its competency - conditions for acquiring nationality. No-one in this case questioned Catherine's acquisition of Irish nationality nor the effective character this bestowed.