On September 16, 2000, Catherine Zhu was born in the city of Belfast, in the United Kingdom.
Her mother, Man Lavette Chen, was a Chinese citizen.
This in itself isn’t strange - people give birth outside of their home country all the
time - but the circumstances of Catherine’s birth are anything but.
This is the story of how a loophole in China’s One-child policy caused a legal crisis in
the UK, transformed European Union law, and led to Ireland changing its constitution.
At its core, this story revolves around an Irish baby - yes, an Irish baby, born to a
Chinese citizen, in the United Kingdom.
So to begin to understand this story, we need to start in...
Ireland... as in, the island of Ireland.
All of Ireland used to be part of the United Kingdom, but a significant part of the population
wanted autonomy, and, eventually, independence.
Ultimately, the southern part of the island became an independent country while Northern
Ireland stayed in the United Kingdom.
This didn’t fix the problem though, and a period of conflict, called The Troubles,
continued until 1998, when the Good Friday Agreement was signed.
One clause of this agreement was that it is the birthright of all people of Northern Ireland
to become a British or Irish citizen (or both), with an annex at the bottom clarifying what
exactly was meant by “people of Northern Ireland”: someone born in Northern Ireland
with at least one British or Irish parent, or someone with permanent residency.
However, the actual text that was drafted for the change to the Irish constitution was
“it is the birthright of every person born in the island of Ireland... to be part of
the Irish Nation”.
There was no mention about the status of the parents.
This was interpreted to mean that Ireland would have unconditional birthright citizenship,
making it the only country in the EU to do so.
This was particularly unusual since it extended that right to those born outside the territory
of the country.
Anyway, back to the story.
Here’s a broad summary, as it was mostly reported at the time: Man Lavette Chen was
living alone in Cardiff, Wales during her pregnancy, and she had a problem.
She wanted Western citizenship for her child and she wanted the right to live with her
in the UK.
However, neither of those things was possible for her in Cardiff, given her immigration
status; she didn’t have permanent residency and only the children of permanent residents
or citizens could get UK citizenship.
Fortunately for her, Ms. Chen had learned about Ireland’s constitutional change from
just a few years before.
It’s not clear how easy it would have been for her to travel to the Republic of Ireland,
but it didn’t matter, since she was free to travel to the island of Ireland within the UK
And that’s exactly what she did.
Ms. Chen, seven months into her pregnancy, took a flight to Belfast, and a little later
gave birth to her daughter Catherine in Northern Ireland.
After filling out the necessary paperwork to request Irish citizenship for her child,
the two of them returned to Wales.
The next step was trickier.
As an Irish citizen, Catherine was also a European Union citizen.
As part of the foundational treaties of the EU, citizens have the right to live in the
territory of any member state.
This included the UK - this was before Brexit, after all.
But EU law was relatively untested at the time - it wasn’t completely clear, for example,
if babies could exercise the right to freedom of movement.
They can’t exactly move much by themselves, after all.
The bigger issue, though, was the immigration status of Catherine’s mother.
Even if Catherine could technically live there, the UK didn’t extend that right to her caregiver.
It wasn’t clear whether or not the UK had the obligation to let Catherine and her mother
live together.
Not doing so would either practically limit Catherine’s rights or else force the family
to break up.
When Ms. Chen’s request for residency in the UK was unsurprisingly rejected, she sued
the Home Secretary of the British Government.
The legal implications for this case were significant.
But the reason why it drew the attention of the public was because it was the apparent
story of an immigrant mother fighting for the right to remain in her adopted country
with her young child - or selfishly abusing the system to get something she wasn’t entitled
to, depending on who you ask.
But because this story touched on such a politically sensitive issue, a few important details were
missed: the first was that Man Lavette Chen was very wealthy, and the second was that
while she wanted the right to live in the UK, she had no intention of actually staying
there.
This brings us to the next piece of the puzzle: China’s One-Child Policy.
Due to fears of overpopulation, the Chinese government started enforcing the One-child-policy in 1980
As the name suggests, this policy, which continued until 2015, limited Chinese couples to just...
one child - at least, on paper.
The policy was enforced inconsistently, which together with the exceptions in place, meant
that many Chinese couples had more than one child in practice.
Rules and enforcement were strictest in the cities, meaning that the growing wealthy urban
class often had to get creative if they wanted to get around it.
While bribes were one approach, outright breaking the law could be risky; an unapproved second
child could be deprived of fundamental rights, while a mother could be forced to abort before
giving birth, and/or face sterilisation after.
Since the goal of the law was to limit overpopulation in China, it was never meant to apply to people
living in other countries.
As such, the law ignored children who were not Chinese citizens.
In practice, this made sense given China’s laws: any child born to a Chinese citizen
outside of China is also Chinese, unless the child receives another citizenship and the
Chinese parent permanently resides outside of China.
Now technically, the citizenship of the child doesn’t need to match the country of residency.
When combined with the One-Child Policy, Irish citizenship law, and European law at the time,
this created the potential for a loophole that you could fit a multi-child family through.
You see, Ms. Chen had already had a baby where she lived, in Zhuhai, China, but her and her
husband, with whom she was presumably happily married, wanted another.
Fortunately for them, they owned a large part of a chemical company that had a presence
in the UK and were already familiar with the country.
So, Ms. Chen, already five months pregnant, got on a plane.
Ms. Chen’s entire case relied on getting a ruling on EU law, but in order to get to
that ruling in the first place, the case first had to be referred to the EU courts via the
UK legal system.
While lower courts could technically refer the case to the European Court of Justice,
they never did, and would instead escalate it through the UK system first, which could
take years.
Fortunately for Ms. Chen, the judge assigned to her case was furious when the Home Secretary
didn’t even bother to show up.
He immediately forwarded the case to the ECJ.
This decision didn’t exactly endear him to the UK legal establishment - though, to
be fair, it’s not like he was particularly popular otherwise.
The judge, Michael Shrimpton, is a fairly well known conspiracy theorist who was opposed
to the UK’s EU membership - oddly enough given the context of the case.
He is perhaps best known for claiming that Germany, through a revived Nazi-era intelligence
agency, had planned to assassinate Queen Elizabeth at the 2012 Summer Olympics in London by detonating
a nuclear bomb scavenged from a Russian submarine.
He was eventually disbarred and jailed after investigators found…
illegal content, shall we say, on his computer.
Anyway... it didn’t take long for the ECJ to affirm Catherine’s right to freedom of
movement and Ms. Chen’s right to reside with her daughter in the UK.
The implications of this ruling were huge.
This case transformed the concept of European citizenship by establishing robust rights
for citizens and their family members.
It also dramatically extended EU authority over member states, particularly with respect
to the controversial topic of immigration.
Of course, this case also put Ireland in a very uncomfortable position, not only with
the UK, but potentially with every other member state of the EU: there was suddenly a much
easier way for people to immigrate to any EU country that they wanted, through something
called “birth tourism".
Birth tourism is a real thing.
The idea is for expectant mothers to travel to a wealthy country with birthright citizenship
in order to ensure that their children can benefit when they’re older.
Entire industries have developed in the US and Canada in particular to cater to wealthier
mothers from lower- and middle-income countries, especially China, Nigeria, Turkey, and,
until recently, Russia.
While precise statistics aren’t available, it’s estimated that there are several thousand
of these birth tourists a year in Canada, and on the order of tens of thousands in the US.
There are of course legitimate arguments to be made against this trend.
For example, in Canada in particular, there are reports that it is putting a strain on
healthcare providers.
More broadly, it could be argued that the practice cheapens citizenship in some form,
or else that it further turns citizenship into a tool that wealthier people can use
to secure additional rights.
Of course, this has been a political issue since well before the birth tourism industry
grew to the size that it is today, and opposition to birthright citizenship has often been characterised
as being tinged with racism.
One of the more flawed assertions made in the US against birth tourism is that aspiring
immigrants go to the country to have what are derisively referred to as “anchor babies”,
meaning that they can then use their children’s citizenship status to secure residency that
they would otherwise not be entitled to.
In the case of Canada and the US, this is almost entirely false; parents don’t derive
residency rights in those countries, unlike in the EU.
Now to be fair, it is true that adult citizen children can sponsor their parents in both
countries, but there are a number of requirements and limitations and the application can always be rejected.
However, there is a country today where birth tourism is being used to gain residency rights
for both the child and their family: Argentina.
As with many other countries in the Americas, Argentina has birthright citizenship.
It also has one of the least stringent requirements for naturalisation in the world, with only
two years of residency.
But incredibly, the residency requirement is eliminated for the parents of Argentine citizens.
In particular, thousands of Russians have taken advantage of this since the War in Ukraine
began in order to secure either residency or just passport rights for themselves and
their families, leading to a debate in Argentine society as to whether or not the system should
be reformed.
A similar debate happened in Ireland after the ECJ ruling.
This was likely unavoidable, in large part given the implications that Irish citizenship
law now had within the EU.
Irish political parties pushed to amend the constitution, in many cases severely overstating
the extent of birth tourism at the time.
The Irish population overwhelmingly voted in favour of the 27th Amendment in 2004, which
eliminated birthright citizenship.
Eliminating birthright citizenship has led to problems that are similar to those experienced
in other EU countries with similar citizenship laws.
For example, in 2018, a nine-year-old boy who was born and raised in Ireland was nearly
deported with his mother to China, a country that he had never been to, given that his
mother had illegally overstayed her entry visa 12 years prior.
As a result of this case and many like it, there’s been a growing movement to either
reform immigration law or to repeal the 27th Amendment entirely and reestablish birthright
citizenship.
Whether or not this is feasible domestically, and how the other EU member states might feel
about it, is up for debate.
The case of Chen v Home Secretary helped to define what EU citizenship actually is and
hugely affected domestic politics and law in both Ireland and the UK.
But at the end of the day, the case was first and foremost about the rights of two people.
So what ended up happening to them?
Well, now that you have the context, it should come as no surprise that, shortly after winning
the case, Ms. Chen and Catherine moved back to China to live with their family.
This wasn’t the end of their story though - some time later, the family moved to the
United States.
The last piece of public information about them was that Catherine was finishing college
and was considering a career in medicine.
Regardless of where she ends up, her mother’s actions have had a profound impact not only
on her life, but on countless families in the EU as well.
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