The Chen Case @ the European Court of Justice – Money Talks and a Government Lies

national | rights, freedoms and repression | opinion/analysis Monday May 24, 2004 23:48 by John Meehan

An Irish Times opinion poll (published on Monday May 24) on the citizenship referendum is good news for the Government – it shows a majority of more than two to one (54% versus 24%, 22% undecided) – in favour of the amendment drafted by Minister for Justice Michael McDowell. The poll was conducted as the “Chen Case” hit the headlines.

Were the people who participated in last week’s opinion poll influenced by the mainstream media coverage? That seems likely.

The Chen Case @ the European Court of Justice – Money Talks and a Government Lies

An Irish Times opinion poll (published on Monday May 24) on the citizenship referendum is good news for the Government – it shows a majority of more than two to one (54% versus 24%, 22% undecided) – in favour of the amendment drafted by Minister for Justice Michael McDowell. The poll was conducted as the “Chen Case” hit the headlines.

Were the people who participated in last week’s opinion poll influenced by the mainstream media coverage? That seems likely.

For example, Social and Family Affairs Mary Coughlan warned us that this would be seen as a back door into the European Union, and that the proposed referendum was therefore necessary. But closer closer examination suggests the opposite.

MONEY TALKS – YOU CAN’T BE A “FINANCIAL BURDEN”

The key point is that “money talks”. If the European Court of Justice agrees with the Opinion of Advocate-General Tizzano, which is very likely - it will be because the small child Catherine Chen (born in Belfast on September 16 2000) will not be a ”financial burden" on a European Union (EU) state - she has to have a stable legal job, or have access to substantial private funds.

Luckily, for baby Catherine, her parents are wealthy : As Vincent Browne explains : “Mr and Mrs Chen live and work in the People's Republic of China. Mr Chen has a controlling shareholding in a very large company in China, which produces and exports chemicals to various parts of the world, including Britain and other EU countries. He is a regular visitor to Europe.” (Sunday Business Post, May 23).

The judgement has NO IMPLICATIONS for illegal immigrants, or asylum seekers on direct provision or any other form of welfare payment : In other words the vast majority of the relevant 11000 families in the twenty six county part of Ireland.
Yet Carol Coulter told “Irish Times” readers (Wednesday May 19) :
“It is fortunate for the Government that the Advocate General of the European Court of Justice chose to issue his judgment before the referendum on citizenship, as it bolsters the Government's arguments.”
Continuing in the same certain tone she wrote that “In announcing the planned referendum, the Government drew attention to the fact that this case was pending, pointing out that it could mean that those not entitled to live in the EU could establish such a right by giving birth to a child in Ireland.”

This is an example of “being economical with the truth”.

In the Advocate General's opinion, Catherine's right stems from the fact that she "is covered by sickness insurance covering all risks in the host Member State". This child, (not yet four years of age) must have through her parents, "sufficient resources to ensure that she will not become a burden on the finances of the host Member State". Therefore, she meets the requirements laid down by Article 1 of Council Directive 91/364/EEC of 28 June 1990 on a right of residence.

For the families of asylum-seekers in Ireland, the result of the case is a disappointment. Keeping asylum-seekers here forcibly on “benefits” such as the scrooge-like “Direct Provision” scheme, for three years, makes sure they remain a “financial burden” on the state : and are not allowed to work legally.

You cannot invoke EU law within one country : you have to cross a national border. In this case because Catherine Chen is Irish, and she was in the UK, that was enough.
Let’s go back to Carol Coulter’s “bolstering” story in last Wednesday’s “Irish Times”, and read beyond the pro-government spin in the opening paragraphs.
Follow the story to the eighth paragraph and you read this :
"leading Constitutional lawyer Gerard Hogan (says) European law cannot be invoked in matters that are wholly internal to the state".

In plain language, this means that the current Supreme Court judgment – that it's OK to deport the parents even if the kids are Irish Citizens - is unaffected.

This Supreme Court Judgement is a disgrace. It would have been better for all of us if the Chen Case enforced a reversal of this Irish ruling.

Advocate-General Tizzano’s Opinion could produce another "Irish Solution to an Irish Problem" : it encourages people in a Chen type dilemma to emigrate to a different European Union member state where they can get a job.

A BABY POWER TOO MANY?

Vincent Browne and Cathryn Costello (a legal expert working in Oxford University) clarified all this on the RTÉ Radio1 “Tonight with Vincent Browne” programme (Tuesday May 18). Listeners could feel and hear the anger and emotion levels rise in two of the panellists, Michael D Higgins TD (Labour Party ) and Colm Ó hEochaidh (Barrister and Fine Gael member). Further discussion included the suggestion that the Irish government had lobbied the European Court to say the Chen case affected the Supreme Court judgement - and it failed.

The FF Kildare Deputy Seán Power was also a panellist. He was in a tight corner – a baby power among wiser adults. Listeners knew that the flood of Government propaganda issued earlier in the day, claiming the Government proposal on citizenship had been “bolstered”, was looking scruffy.

Mary Coughlan’s claims about “back doors” into the EU were being torn to pieces.

Power began to quote paragraph 124 of Advocate-General Tizzano’s text – or did he?

Ever the vigilant presenter, Vincent Browne advised the Kildare man to start the quote again. Power was given a second bite of the cherry. But Vincent instructed the Fianna Fáil TD to include a phrase he left out the first time. The phrase Power left out in his first quotation was “if problem there be” :

Here’s the full quotation :

‘..the problem, if problem there be, lies in the criterion used by the Irish legislation for granting nationality, the ius soli, which lends itself to the emergence of situations like the one at issue in this case. In order to avoid such situations, the criterion could have been moderated by the addition of a condition of settled residence of the parent within the territory of the island of Ireland.’

The meaning of this is : Advocate-General Tizzano carefully avoids claiming that there is a problem. The unfortunate Seán Power got a verbal roasting from the programme presenter and the other two panellists, especially Michael D Higgins.

Is the Government case “Bolstered” by the Chen Opinion?

No – it has been “Banjaxed”.

Vote No on June 11.

John Meehan 24 May 2004

(This article is based on research by Aisling Reidy and Ivana Bacik)