The European Court of Human Rights has ruled against two mothers who had argued their human rights were breached because they were refused child benefit while they were awaiting decisions on their immigration status to Ireland.
The women from Nigeria and Afghanistan were refused child benefits at a time when they had children who were legally resident in Ireland, but they themselves were awaiting a decision on their own immigration status.
The two took the case to Strasbourg after losing an appeal to the Supreme Court in Dublin in 2019.
On Thursday the chamber of seven judges unanimously rejected the applicants’ arguments that their rights had been breached under the European Convention on Human Rights, which prohibits discrimination and obliges respect for private and family life.
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“Since the applicant mothers had not been in a comparable situation to eligible parents, they had not been discriminated against,” a summary of the court’s decision read.
“The Court therefore found that, in the circumstances of this case, no difference of treatment arose. The claim of discrimination in relation to eligibility for child benefit was therefore rejected.”
The Nigerian mother arrived in Ireland in 2013 and applied for asylum a year later, but was rejected in 2015. She then applied to the Minister for Justice and Equality for the right to reside as she was the mother of an Irish child, who was born in 2014 to an Irish father and was a citizen from birth.
While her residency application was pending, she applied for child benefit and was rejected. She was ultimately granted the right to reside in 2016 and has received child benefit since then, but the legal challenge regarded the 12-month period in which she had received no child benefits.
The mother from Afghanistan arrived in Ireland in 2008 with her husband and child and went on to have three children in Ireland. Her youngest child was granted asylum in 2014 and the family then applied for residency under family reunification provisions.
The mother applied for child benefit for her four children while the decision was pending, and it was refused. Ultimately, she was granted asylum and began to receive child benefit from that point, but her challenge related to the eight-month period in which child benefit was refused.
The European court noted that it was clear from the Irish court judgments that eligibility for child benefits is based on the status of the parent or guardian, and not on the residency status of the child.
The court noted that social security systems have an “essentially national character” and that it is internationally accepted that countries can limit entitlement to residents, as well as being able to “control entry on to their territory”
It found that the two applicants “had not been in a comparable situation to people who had already had residency in Ireland” at the time that they applied for child benefit and therefore had not been discriminated against.
It also rejected the argument that eligibility for child benefit should be treated under the scope of the European Convention on Human Rights’ protection of the right to privacy and family life, citing recent case law.
