The Government fears that it may not be able to deport many of the 11,000 families with Irish-born children facing deportation following a Supreme Court case last year. There are concerns in Government circles that Tuesday's Chen judgment in the European Court of Justice will give many of these families the right to reside in Ireland.
The majority of the Supreme Court in the Lobe case in January 2003 ruled that the non-EU citizen parents of a child born in Ireland, and who therefore had Irish citizenship, did not have the automatic right to live in Ireland. The Minister for Justice said at the time that the status of the estimated 11,000 families in this situation would be decided on a case-by-case basis. A small number so far have been deported, and the status of the remainder is uncertain.
On Tuesday the Advocate General of the European Court of Justice gave a preliminary judgment in favour of a Chinese woman who claimed the right to reside in the UK on the basis that she was the mother of an Irish citizen, born in Belfast, who was therefore a citizen of the EU.
Legal experts said that this meant that non-EU parents of Irish-born children could live anywhere in the EU except in Ireland, as the Supreme Court judgment still applied in this State.
However, Government sources consider it is not politically sustainable to have a situation where the families of EU citizen children threatened with the prospect of deportation from this State can go to the UK or another EU state and establish residency there.
The Advocate General's judgment stated that the purpose of EU law as argued here was to eliminate any restriction on the right of movement of EU nationals, subject to them not being a financial burden on the host state. Ms Chen and her husband were business people with substantial financial resources.
Some legal experts consider that this means the judgment will not be applicable to those families who do not have such resources, and who might be a burden on another EU state.
This view is not shared by Government advisers, who feel that it may not be possible to maintain a distinction between rich and poor in deciding on deportations. They point to the Fajujonu case, which established the right of the families of Irish-born children to live in Ireland. In this case the Chief Justice, Mr Justice Walsh, was highly critical of the Government for depriving Mr Fajujonu of the capacity to support his family by refusing him a work permit.
Asylum-seekers are denied the right to work as a matter of Government policy, and it could be argued that the Government is creating a situation where they are a burden on the State, or could be such a burden on another state.
The Advocate General's judgment is likely, though not certain, to be followed by the court when it gives its final ruling next autumn.