Analysis of Mr. and Mrs. Chen Case - Essay Example

?Case C-200/03 Zhu and Chen [2004] ECR 9925 Background Facts Mr. and Mrs. Chen are both nationals of China and Mr. Chen works for a Chinese companyof which he is a majority shareholder and director. As such Mr. Chen travels throughout the EU quite often and more especially to the UK. In 1998, the Chen’s first child was born in China and the second child was born in the Belfast, Ireland in September of 2000. By virtue of Section 6(1) of the Irish Nationality and Citizenship Act 1956 (as amended in 2001) any person born in Ireland as of 2 December 1999 is eligible for Irish citizenship. Moreover, by virtue of Section 6(3) any person born in Ireland becomes an Irish citizen if that person does not have the right to citizenship elsewhere. Pursuant to Section 6(1) and (3), the Irish authorities approved an Irish passport for Catherine in September 2000. Since the UK no longer applies the doctrine of jus soli (recognition of the citizenship conferred by any of its territories), Catherine was not automatically entitled to be recognized as a national of the UK under the British Nationality Act 1981. The facts reveal that Mrs. Chen went to Ireland for the purpose of enabling Catherine (the child she was pregnant with at the time) to become a citizen of Ireland and to therefore permit her to take up residence within the UK with Catherine. The court at first instance determined that Ireland is a part of the Common Travel Area under the Immigration Acts. As such Catherine as opposed to Mrs. Chen is entitled to move around the UK and in Ireland as she chooses to. However, Mrs. Chen and Catherine did not have the right to live in the UK under UK law. The Secretary of State for the Home Department denied an application for a permit to reside in the UK to Mrs. Chen and Catherine on the grounds that Catherine who was an infant was not asserting EC Treaty rights pursuant to Regulation 5(1) of the EEA Regulations and Mrs. Chen does not have a right to live in the UK pursuant to Regulation 5(1) of the EEA. Mrs. Chen appealed this decision to the Immigration Appellate Authority. The Appellate Authority ordered a stay of the appeal until such time as a reference to the Court of Justice could be determined. The questions referred to the Court of Justice generally asked for a determination of whether or not Directive 73/148, Direction 90/364 or Article 18 of EC Treaty read together with Articles 8 and 14 of the European Convention on Human Rights gave minor nationals of Members State who are cared for by a parent who is not a national of a Member State, a general right to live in a Member State in which the minor is receiving the services relative to child care. If so, the referring court wanted to determine whether as a consequence, the parent was entitled to the right to reside in a Member State. Catherine’s Nationality Essentially, the Court of Justice ruled that children who are minors have a protected right relative to their residence when a family breaks down and the caregiver or custodial parents enjoys a parallel right to reside with the child regardless of the parent or caregiver’s nationality. Just because the child is a minor does not mean that the child cannot assert his or rights to move freely, a right protected under Community law. To deprive the parent or caregiver who is a not a national of a Member State the right of residence is tantamount to depriving the minor child who is a national of a host Member State with his or her right of residence. The minor child’s right to residence implies that the minor child has a right to have his or her parent or primary caregiver reside with him or her in the host Member State. Thus where Article 21 of TFEU and Directive 90/364 confers upon the minor the right to live long-term in a host Member State who is simultaneously a national of another Member State, the same right confers upon the caregiver or parent the right to live with that child in the host Member State. Moreover, Article 14 of the European Convention on Human Rights 1950, guarantees that all rights and liberties in the Convention will be enjoyed without discrimination in any form relative to a “national minority”.1 It would therefore appear that restricting Mrs. Chen’s residence on the basis that Catherine was a minor and unable to exercise the right of free movement among the Member States constituted discrimination relative to a “national minority” and was thus prohibited. UK’s Argument that Mrs. Chen’s Conduct was an Abuse of Law The UK also argued that the Chens had abused the law by putting in motion a specific plan to ensure that baby Catherine was born in Northern Ireland so that the requisite nationality could be acquired and thus a right to reside in another EU Member State. This plan was allegedly manifested by the fact that the Chen’s entered Ireland in July 2000 when Mrs. Chen was 6 months pregnant and she subsequently gave birth to Catherine in Ireland in September of the same year. In the Opinion of Lord Advocate Tizzano it was acknowledged that Member States are entitled to enact laws to prevent non-nationals deliberately using Community law to forestall the consequences of national laws. However, Lord Advocate Tizzano argued that it is only in “exceptional circumstances” that exercising the rights and freedoms conferred by the Treaty amounts to an abuse of law, because a failure to apply a national law relative to a right founded on Community law amounts to an ordinary outcome of principles implicit in “the supremacy of Community law”.2 Moreover, when an individual intentionally positions himself/herself so as to take achieve a right under Community law so as to escape the consequences of national law, does not provide a “sufficient basis for the relevant Community provisions to be rendered inapplicable”.3 The proper test for substantiating an abuse of the law is ascertaining whether or not the aims and objectives of the Community law conferring a specific right has been distorted. Since Mr. and Mrs. Chen did nothing improper and did not commit fraud, the test fails. Although Mrs. Chen is taking advantage of a Community provision which nullifies the application of UK law unfavourable to her, is not enough to substantiate the claim that she has distorted the aims and objectives of the Community law. The aims and objectives of the Community laws are to facilitate the free movement of nationals. When a parent-to-be determines that the child’s best interest is served by acquiring nationality in the EU, it is not an abuse of the law if the nationality is acquired pursuant to the law. The Significance and Consequence Relative to the Recent Change in Irish Law It was contended that the choice of Ireland as the birthplace of baby Catherine was not an “accident.”4 Based on the changes to Irish Nationality and Citizenship Act 1956 (as amended in 2001) anyone born in Ireland as of 2 December 1999 would be entitled to Irish nationality. It was this particular provision of Irish law that appealed to the Chens who subsequently agreed to ensure that Catherine was born in Ireland. The conditions for meeting the requirements of Irish nationality were met and thus Mrs. Chen was entitled to take advantage of the community laws that flowed from having the care of a minor who was a national of a Member State, despite the restrictions under the British Nationality Act. However, there was more to the significance of having nationality rights under Irish Law. The court determined that the conditions were met pursuant to Article 1 of Council Directive 90/364/EEC of 1990 because the minor national had insurance benefit provided by her mother which ensured that she was not a financial burden on the host Member State. Bibliography European Convention on Human Rights, 1959. Case C-200/03 Zhu and Chen [2004] ECR 1-9925. Zhu and Chen, Opinion of Advocate General Tizzano, Delivered on 18 May, 2004, Para 12. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62002CC0200:EN:PDF (Retrieved 25 March, 2012). Read More