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Birthright citizenship restored in Ireland?

Updated: Nov 30, 2018

During a time when birthright citizenship is under attack in the US, the New York Times reports that a proposed law in Ireland would ‘grant the right to citizenship to any person who is born in Ireland and subsequently lives in the country for three years, regardless of the parents’ citizenship or residency status. It would largely reverse the effect of 2004 referendum in which 79 percent of voters supported the removal of a constitutional provision granting citizenship to anyone born in Ireland’.

The Irish government, however, is opposed because of the special relationship between Ireland and Northern Ireland. According to the NY Times, ‘although Northern Ireland is part of the United Kingdom, its people are legally entitled to both British and Irish citizenship. The Irish government fears that people living illegally in Britain could move to Northern Ireland, give birth to a child there and obtain Irish citizenship for their child after living there for three years’.

This recalls the 2004 Zhu and Chen judgment of the Court of Justice of the European Union, which seems to have been a deciding factor leading to the abolition, by way of a referendum, of the principle of automatic acquisition of Irish nationality by birth in Northern Ireland.

The facts of the case and the questions under EU law were as follows. Mrs Chen and her husband both worked for a Chinese undertaking and often travelled to Europe for business – the United Kingdom in particular. The couple already had one child and was not allowed to have a second child under Chinese law. Mrs Chen then deliberately entered the UK in May 2000, when she was six months pregnant, with the aim of giving birth in Belfast. Although this city is situated in Northern Ireland, which forms part of the United Kingdom, Irish law at the time also provided for the automatic acquisition of Irish nationality iure soli to children born in Northern Ireland. Not only did Mrs Chen’s child (Catherine) therefore acquire Irish nationality, the child also became a European citizen. In that capacity Catherine could make use of her right to reside in another Member State, which she did when mother and child settled in Wales, also in the UK.

Although Mrs Chen and Catherine had thus never moved to another Member State, the Court held that this was not a purely internal situation (as claimed by the Irish and UK governments) due to the fact that Catherine – an Irish national – was resident in the UK. The Court also did not agree with the UK’s argument that ‘Mrs Chen’s move to Northern Ireland with the aim of having her child acquire the nationality of another Member State constitutes an attempt improperly to exploit the provisions of [EU] law’. Referring to Micheletti and Kaur, two earlier nationality law cases handed down by the Court, it was held that international law allows each Member State, having due regard to EU law, to lay down the conditions for the acquisition and loss of nationality. The legality of the child’s acquisition of Irish nationality was therefore uncontested. Finally, the CJEU decided that the mother, who was not a European citizen, had a right to reside with the child as her primary carer. Any other decision would deprive the child’s right of residence of any useful effect.

Author: Dr. Olivier Vonk

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