Ruling Exposes Immigration Loophole

The European Court of Justice in Luxembourg yesterday exposed a large gap in Britain's immigration laws when it ruled that a Chinese woman who travelled to Belfast to have her child has the right to live in Britain because the child became an Irish citizen by birth and therefore an EU national.

The court ruled that Kunquian Catherine Zhu, now aged four and living with her mother, Man Levette Chen, in Cardiff, is entitled under the EU treaty as a national of the EU to live in any member state as long as she is covered by sickness insurance and has enough resources - in this case provided by her mother - not to rely on public funds.

The child's rights as an EU national also give her mother the right to long-term residence, the court ruled.

The Irish government now plans to change its law to block the loophole, following a referendum in which the public backed the change by four to one.

The court held that because Catherine receives private medical treatment and child care, paid for by her mother, and is not dependent on the state, she is entitled to live in Britain as an EU national.

The European judges ruled that it was irrelevant that Mrs Chen had travelled to Belfast specifically to enable the child she was expecting to acquire the nationality of an EU member state.

The Luxembourg court was told Mrs Chen knew that giving birth in Britain would not give her new baby automatic residency rights because of the terms of the British Nationality Act. But she also knew that choosing Northern Ireland guaranteed Irish nationality, which is granted to anyone born anywhere on the island of Ireland.

Once that was achieved, the plan was for her 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.

The plan was hatched because Mrs Chen and her 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.

Mrs Chen was "over the moon" with the judgment and now plans to settle in Cardiff with her daughter, said her solicitor, Michael Barry.

His client, whose family runs an international chemical firm, first visited the Welsh capital on business, he said.

The case was referred to the Luxembourg court by the Immigration Appellate Authority after Mrs Chen appealed against the refusal of a residence permit.