The European Court of Justice has upheld the opinion of the Advocate General that residency rights can derive from the private provision of health services.
The United Kingdom Home Office refusal to allow a Chinese woman and her Belfast-born daughter to live permanently in Britain has been declared illegal under European Union law.
European Court judges acknowledged that the woman, Man Levette Chen, deliberately had her child in Belfast to win UK residency rights for herself. But that did not entitle the UK Government to refuse to let her or her daughter Catherine stay.
By choosing Northern Ireland as the location to give birth Man Levette Chen knew her daughter was guaranteed Irish nationality, which is granted to anyone born anywhere on the island of Ireland. Once that was achieved, the plan was to take her Irish daughter to live in the UK under EU rules which allow nationals of one member state - such as Ireland - the right to settle in another.
Mrs Chen and her businessman husband already had a son and could not have another in their own country under China’s "one-child" rule. So when she was six months pregnant with her second baby in mid-2000, she moved to Belfast and gave birth to Catherine.
The child received an Irish passport - but the UK authorities challenged the right of either mother or daughter to live in the UK. The Home Office argued that as Catherine was only eight months old at the time, she could not exercise any EU rights.
Even if she could, argued the Government, Mrs Chen could not live in the UK because the law only allowed "dependent relatives" to join their family - and Mrs Chen was far from dependent on her baby.
The case was passed to the European Court by an immigration tribunal after the Chens claimed their treatment was a breach of EU rules. The European Commission backed the UK Government stand, arguing that the family’s interests had to be balanced against the UK’s interests in controlling immigration.
But the judges have ruled that daughter Catherine, as an EU national, has the right to stay in the UK, as she is covered by sickness insurance and has sufficient resources (through her parents) not to become a burden on the UK social assistance scheme.
The Court stated that to refuse Mrs Chen a right to reside with her daughter in the United Kingdom would render her daughters right of residence totally ineffective. As such the mother as Catherine’s carer, should be allowed to remain with her daughter in the UK.
European Court of Justice Decision 19 October 2004
Opinion of the Advocate General 18 May 2004
