A Chinese woman is claiming the right to live in the United Kingdom on the basis of being the parent of a child born on the island of Ireland in a case that could have major implications for the Government's proposed referendum on citizenship.
The child was born in Belfast in 2000 and is an Irish citizen under the nationality regime introduced by the Belfast Agreement.
Ms Man Levette Chen and her daughter, Kunqian Catherine Zhu, have appealed to the European Court of Justice a decision of the British Home Secretary that they do not have the right to reside there.
Ms Chen and her husband work for a Chinese company exporting goods to the EU. She came to the UK when she was approximately six months pregnant.
Acting on legal advice received from a lawyer in the UK, she travelled to Belfast in July 2000, where she had her baby on September 16th, 2000.
The mother's legal team argues that the child, who is an Irish citizen, is entitled to UK residence under EU law, and that the mother is "dependent" on the child for immigration status.
If Ms Chen wins her case, it would mean that having a child born anywhere in Ireland, including Northern Ireland, would provide a basis for non-EU nationals to establish a right to reside in any other EU state.
The case has been argued before the court and is awaiting a verdict.
Meanwhile, The Irish Times has learned the Government will propose that one parent of a non-national child born in Ireland will have to have lived here for a minimum of three years for the child to have Irish nationality.
This will be in the amending legislation on citizenship to be published in advance of the proposed citizenship referendum.
The Government will decide on the date of the referendum next week.
If the referendum is to go ahead on the same date as the European and local elections, the enabling referendum Bill must be passed by both Houses of the Oireachtas 30 days before, that is by May 12th. The Dáil rises next Thursday and does not resume until April 27th, leaving only two weeks for the Bill and the proposed legislation to be debated.
The Bill cannot be passed before the referendum, but the Government has promised to publish it so that people know what is being proposed to follow the amendment.
The Bill will amend the existing 1956 Citizenship Act in the area of entitlement to citizenship on the basis of birth in the island of Ireland, combined with residency.
At the moment a foreign national can be naturalised as an Irish citizen if he or she has lived in Ireland for five out of the previous 10 years. However, for spouses the residency requirement is only three years. The rule for children born in Ireland is expected to be the same as for spouses of Irish citizens.
The law is also likely to spell out how residency is to be verified. EU nationals can avail of residence permits through the exercise of their rights under EU law, but non-EU nationals have to have the permission of the Minister for Justice, Mr McDowell, under immigration law.
This would mean that those illegally in the country could not seek citizenship for their children on the basis of birth, even if they were here for the prescribed time.
Meanwhile, the Labour Party leader, Mr Pat Rabbitte, has called on the Human Rights Commissions in the Republic and the North to consider whether the proposed referendum on citizenship is an attempt to remove a fundamental right conferred in the 1998 Belfast Agreement.
He also said yesterday that the proposal to change Article 9 of the Constitution to restrict citizenship rights of children born in Ireland to non-nationals may conflict with the unqualified right in Article 2 to such citizenship. If the referendum is carried, these two Articles may be irreconcilable, he said.
In a letter to Dr Maurice Manning, the president of the Republic's Human Rights Commission, Mr Rabbitte argues that the proposal to restrict the automatic right of citizenship conferred by the Belfast Agreement and by associated constitutional changes would mark a unilateral change to the rights conferred under the agreement.