Former direct provision resident seeks backdated child benefits

High Court action seen as a test case raising issues under Irish and EU law

A woman who spent more than six years in direct provision with her husband before they were granted subsidiary protection here has challenged the refusal to backdate child benefit payments for their eight year old Irish born son.

The case, brought by the woman and child, is regarded as a test case raising significant issues under Irish and EU law concerning the rights of children and the child benefit entitlements of people who are granted subsidiary protection.

No regard seems to have been paid to the interests of this child in the various decisions on child benefit, argued Michael Lynn SC, instructed by the Free Legal Advice Centre, for the applicants.

In a sworn statement, the woman said she and her husband have professional qualifications and their living conditions while in direct provision from 2006 to 2012, along with not being permitted to work, were “distressing and damaging” to both of them.

In opposing the case, the State said the couple and child got total weekly payments of €47.80 in direct provision and had “all their needs met”. It also argued that legal actions by the couple contributed to delays processing their protection applications.

The core issues in the case are whether the woman is entitled to child benefit for her son from (1) his date of birth; (2) date of first application for child benefit or (3) the date subsidiary protection was granted.

The applicants argue the appropriate dates are his late 2007 date of birth or when she first sought child benefit in April 2008.

The State contends the appropriate date for payment of child benefit is May 2012, when subsidiary protection was granted. It maintains, under amendments made in 2009 to the Social Welfare Consolidation Act 2005, there was no entitlement to child benefit before May 2012 because the woman could not be regarded as “habitually resident” in the State.

Inexcusable delay

Opening the case before Mr Justice Michael White, Mr Lynn said the delay of more than six years processing the couple's protection applications was inordinate and inexcusable.

Ireland is the only country in the EU with such “appalling delays” which result from Ireland’s two tier system, unique in the EU, under which separate applications have to be made for refugee status and subsidiary protection, he said. New laws providing for a one tier system have yet to come into effect, he added.

Counsel also argued, if the 2009 habitual residence amendments to the Social Welfare Consolidation Act allow the State pay child benefit only from the date subsidiary protection is granted, those breached national and EU law.

Because the woman got subsidiary protection in 2012, she must be viewed as a person deserving of protection, and associated benefits under EU law, including child benefit, from the time she first sought it in 2006, he said.

It may be appropriate to refer certain issues for determination by the Court of Justice of the EU, he said.

The couple came here in January 2006 seeking international protection on grounds including fear of persecution in their home country on grounds of the husband’s religion.

That same month, they applied for refugee status. When that was refused about a year later, they applied for subsidiary protection and also initiated legal challenges over being refused refugee status.

After their lawyers secured new country of origin information regarded as significant to seeking international protection, their legal cases were struck out on agreement in 2009 and they sought to re-enter the refugee determination procedure. When that was refused, they pursued applications for subsidiary protection which were ultimately granted in May 2012.

Applications for child benefit made in early 2008 and 2009 were refused and appeals against those refusals were also rejected. After a further appeal, the Chief Appeals Officer granted child benefit in February 2013 and backdated that to May 2012.

The case, expected to last four days, continues on Thursday.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times