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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 Minister 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 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
Radio 1 “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”.
(This
article is based on research by Aisling Reidy and
Ivana Bacik)
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