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Kunqian Catherine Zhu, Man Lavette Chen, v Secretary of State for the Home

Department
This case is about the right to a long term residence permit in the Member States (MS) of
EU with respect to a parent, Man Lavette Chen (hereinafter “Mrs. Chen”), who is a national of
China and the child, Kunqian Catherine Zhu (hereinafter “Catherine”), of Irish nationality.
Mrs. Chen gave birth to Catherine in Belfast, the capital of Northern Ireland, in
September, 2000. Under the Irish Citizenship Act, Catherine acquired Irish nationality. However
she was not entitled to acquire UK nationality since British Nationality Act doesn’t allow giving
nationality based on jus soli. In addition, acquisition of an Irish citizenship doesn’t automatically
allow Catherine Chen to be considered as a British citizen. Mrs. Chen tries to acquire a long term
residence permit both to herself and her child in the UK. The Secretary of State for the Home
Department refuses to give them a long term residence permit reasoning its decision on that
Catherine is too young to be able to exercise the right concerned and Mrs. Chen is not entitled to
reside in the UK under Community legislation.
This decision was appealed to the Immigration Appellate Authority, which, subsequently,
referred to the ECJ to ascertain the application of Directive 73/148, Directive 90/ 364 or Article
18 EC, if appropriate, to read in conjunction with Articles 8 and 14 of ECHR in the light of the
appellants’ circumstances. The ECJ examined the rights of the two appellants separately. First, it
examined the rights of Catherine and then the rights of her mother.

Catherine’s right to residence in a Member State of the EU

At the preliminary consideration, the ECJ ruled on the applicability of the Community
law with respect to the following two arguments by the appellees:
1. The Irish and UK Governments’ argued that the appellants did not move from one MS to
another MS and therefore provisions of Community legislation couldn’t be applied. The
ECJ rejected their argument. In the Court’s view, freedom of movement cannot, for that
reason alone, be assimilated to a purely internal situation.
2. The Irish Government contended that Catherine is not of a legal age to exercise the
rights to free movement and residence guaranteed by Community law. The Court held
that the rights to free movement and residence cannot be made conditional upon the
attainment by the person of a minimum age. Also, as the Advocate General reflected in
his opinion, it does not follow either from the terms of, or from the aims pursued by the
Community law concerned.

Having made it clear that the Community legislation is applicable to the given case and
Catherine can exercise the right to free movement and residence, the Court went on to examine
whether Catherine has a right to reside in the UK on a long term basis as a recipient of child-
care services under Community Directive 73/148. The Directive provides that nationals of a MS,
who wish to go to another MS as recipients of services, have the right to free movement and
residence in that Member State. However, pursuant to Art 4(2) of the Directive, Catherine has a
right to reside in another MS only during the period she is receiving medical services.
Moreover, according to the case-law of the Court (Case 196/87 Steymann), for receiving
particular types of services, including child-care, a national of the EU cannot acquire a residence
permit for indefinite period in a host MS. Thus, the Court ruled that, as these medical services
are received on a temporary basis, Catherine is not entitled to a residence permit for an indefinite
term.
The Court moves to the next question regarding the right to long term residence under
Article 18 EC and under Directive 90/364. Article 18 provides that the right concerned is granted
directly to every citizen of the Union. As a national of the MS, Catherine is considered as a
citizen of the Union; therefore she is entitled to the rights provided by Article 18 EC with
limitations and conditions imposed by the Treaty and by the measures adopted to give it effect.
As to the limitations, Article 1(1) of Directive 90/364 provides that MS shall grant the right of
residence to nationals of MS who do not enjoy this right under other of Community law and to
dependent relatives in the ascending line of the holder of the right of residence, provided that
they themselves and the members of their families are covered by sickness insurance in respect
of all risks in the host MS and have sufficient resources to avoid becoming a burden on the social
assistance system of the host MS during their period of residence.
Mrs. Chen provides sufficient funds to Catherine to cover the latter’s sickness insurance
and to reside in the UK not by being burden on social assistance system. However, the Irish and
UK governments raised objection that Catherine should possess those resources herself
personally in order to meet the conditions for long term residence. The Court rejected this
objection. In the Court’s view, the provisions concerned lay down no requirement whatsoever
as to the origin of the resources. In addition, the Court stated that the conditions and limitations
must be proportionate as to the objectives they have incorporated in Directive 90/364, namely,
not to become an “unreasonable” burden on the public finances of the host MS. In the given
situation, the Court found that taking into account origins of the funds would constitute a
disproportionate interference with the fundamental rights.
The UK Government’s last contention based on the assumption that Mrs. Chen moved to
Northern Ireland with the aim of having her child acquire the nationality of another MS, which
constituted an attempt improperly to exploit the provisions of Community law. The Court
rejected this argument by the fact that none of the parties that submitted observations to the
Court has questioned either the legality, or the fact, of Catherine’s acquisition of Irish
nationality.
On the aforementioned grounds, the ECJ found that Catherine has a right to a long
term residence permit.

Mrs. Chen’ right to residence in a Member State to the EU

The Court found Article 1(2)(b) of Directive 90/364, which guarantees the right to residence in a
MS to dependent relatives in the ascending line of the holder of the right of residence, DOES
NOT CONFER on Mrs. Chen the right to residence in a MS by the reason that she is not
dependent on her child; instead, her child is dependent on her.

However, the Court came to conclusion that not granting a right to the mother would deprive her
child to effectively exercise the latter’s right. Solely on this reason, the Court granted Mrs.
Chen the right to residence in the UK.

On the abovementioned grounds, the Court held:

1. In circumstances like those of the main proceedings, Article 18 EC and Council Directive
90/364/EEC of 28 June 1990 on the right of residence confer on a young minor who is a
national of a MS, is covered by appropriate sickness insurance and is in the care of a
parent who is a third country national having sufficient resources for that minor not to
become a burden on tae public finances of the host MS, a right to reside for an indefinite
period in that State. In such circumstances, those same provisions allow a parent who is
that minor’s primary career to reside with the child in the host MS.