The Chen judgment raises challenges for Government, writes Carol Coulter, Legal Affairs Correspondent.
The Chen case formed a central plank in the Government's platform when it argued in favour of the citizenship referendum earlier this year.
At the final press conference the then minister for social and family affairs, Ms Mary Coughlan, said that, following this case, if children born in Ireland to non-nationals were allowed the automatic right to Irish citizenship, a back door would be opened into the EU.
The Advocate General at the European Court of Justice agreed. When he gave his preliminary judgment allowing Mrs Chen the right to live in the UK as the parent of an Irish-born child, he said that the "problem, if problem there be" lay with the Irish citizenship regime, where an automatic right to citizenship was given to all those born on the island of Ireland.
The full court yesterday upheld the right of Catherine Chen and her mother to live in the UK. Mrs Chen's entitlement derives from her relationship with her Irish citizen child.
Before the emergence of the case, the Supreme Court had ruled that the non-national parents of Irish-born children did not have the automatic right to live in Ireland, reversing a long-standing rule. This, combined with the Chen judgment, produced the anomalous situation that such families have the right to live in any EU state except Ireland.
This right is, however, subject to a number of qualifications. EU law states that the right of all EU citizens to reside in other member- states is conditional on them being covered by health insurance, and having sufficient resources to avoid becoming a burden on the social assistance system of the host state.
The Chen family are well off. They are well able to support themselves, and have health insurance. They are not, therefore, likely to become a burden on the British state and are covered by this proviso in EU law.
The British and Irish governments had argued that Catherine Chen did not possess these resources in her own right, but the court rejected this argument. It also rejected an argument that her right to live in the EU did not extend to her mother, and that if her mother could not live in the UK, it rendered Catherine's right to do so meaningless. Here the European Court and the Irish Supreme Court diverge.
The referendum removing the automatic right to citizenship to all children born in Ireland was passed last May, so there is no prospect there will be another such case over a child born since.
The numbers who could be in similar circumstances as the Chen family are likely to be small. The total number of children born in Ireland to non-national parents before the Supreme Court case run to some thousands, but the vast majority are seeking to live in Ireland, not in another EU country.
The numbers eligible to live in another EU state will also be severely limited by the need to have sufficient resources; not to be a burden on the state; and to have health insurance.
Those with refugee status have the right to live in Ireland anyway, and in due course to seek naturalisation. Many of those seeking the right to live in the EU because they do not have the right, or the desire, to live in Ireland are likely to be asylum-seekers. They are not allowed to work, so they will not have the resources to prevent them being a burden on the State.
The group for whom this ruling has most implications are those families of Irish-born children who were advised, before the Supreme Court judgment, that they would obtain the right to residence on the basis of the nationality of their children. They entered this process and, since the Supreme Court judgment, are in a legal limbo.
The Minister for Justice, Mr McDowell, promised, in the wake of the referendum, that he would consider their situation sympathetically. However, so far there has been no move from the Government, and deportations of some of these families are taking place.
Some of the deportations are being challenged in the courts, and yesterday's judgment will strengthen their case. Although the Supreme Court has agreed that there is no automatic right to residency, it will have to examine the implications of a situation where an Irish citizen cannot live in Ireland with his or her family, but can live anywhere else in the EU.
The EU ruling does not apply to the rights of Irish citizens in Ireland, so it does not mean that the Supreme Court judgment is in any way invalid. The Irish Constitution is supreme under Irish law.
Some legal sources consider that it might be difficult to sustain the distinction between those with adequate resources and those without under the Irish Constitution.
While this distinction is legal under European law, it might introduce an arbitrary discrimination between two categories of Irish citizens, contrary to Article 40 of the Constitution.
Whatever happens in the courts, the present anomalous situation does raise a number of challenges for the Government. The best thing to do now would be to regularise the situation of the families of Irish-born children already here, many of them for several years. The children know no other life. They are integrated into the social and educational life of the community.
Further, their numbers are finite. The Government's action in taking the Supreme Court case and promoting the constitutional referendum have ensured that the Chen case cannot arise again.