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Some years ago there was a rather famous court case which led to a change in the Irish constitution.

https://en.wikipedia.org/wiki/Chen_v_Home_Secretary

Basically before this case if somebody was born on the island of Ireland they were automatically entitled to Irish citizenship. This loophole was cunningly exploited by a Chinese family wishing to remain in the UK by having a kid in Northern Ireland.

After this case Ireland closed off jus soli and changed the rules so that somebody born on Ireland could only be Irish if their parents were Irish...... OR British.

Which....brings to mind a possibility. Given Brexit the opposite of this court case now seems desirable. That British parents may wish to have children born in Ireland so that their child may have full European rights and by extension via the mentioned court case the parents would reclaim their rights too.

My question is...is this assessment correct? Or is there something I'm missing here? For anti-Brexit brits is checking into a Belfast maternity hospital a valid approach to regaining their rights?

Note that this is a purely theoretical question. I am not currently expecting any new children and my kids maintain a right to live in around Europe via other means!

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  • The question that needs to be answered is whether a minor EU citizen can exercise their right of freedom of movement to take their residence from Ireland to another EU country. Nov 18 '21 at 15:40
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    @MarkJohnson the case cited here seems to have answered that question in the affirmative: "It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer and accordingly that the carer must be in a position to reside with the child in the host Member State for the duration of such residence."
    – phoog
    Nov 18 '21 at 17:15
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There is no reason to think EU law has changed because of Brexit and it could indeed be used creatively by British citizens. Note however that freedom of movement rights for parents has always been limited, Chen works because the EU citizen is a minor who had been living in the UK. I am not 100% sure of that but I suspect it could be difficult to use that right to move to a different country, as opposed to remain in a place where the child already is (I vaguely recall some other cases where that distinction was present in the reasoning of the court but I don't remember which one).

In any case, EU freedom of movement does not entail a right for parents to live with their adult children so whatever benefit the parents derive from their child's EU citizenship would only last until that child becomes independent. It's not exactly comparable to the rights enjoyed by a family of EU citizens, who can basically come and go independently of each other.

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  • Would be fascinated to hear more if you do know of moving country cases Nov 22 '21 at 14:13

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