Woman who has spent nine years in direct provision in legal case

A woman who has spent nine years in the direct provision system has, along with her young Irish-citizen child, taken a High Court challenge to the constitutionality of social welfare laws under which child benefit is being refused.

The Irish Human rights and Equality Commission are being put on notice of the proceedings which have potential implications for others in similar positions to the woman.

The child's father is Irish but has had no involvement with either mother or child and the woman contends the child benefit should be payable to her, Mr Justice Seamus Noonan was told.

The woman, from an African country, has applied for subsidiary protection and for a right of residence here on the basis she is the mother of an Irish citizen child, now aged two.

Aoife Gillespie, for the mother and child, said, because the mother has no express right as of now to reside in the State, she has been informed she is not entitled to child benefit.

The mother is habitually resident here having lived here for nine years but disputed provisions of the Social Welfare Consolidation Act 2005 mean she cannot be regarded as habitually resident for the purposes of child benefit payments, counsel outlined.

The mother and child are living in direct provision accommodation and the woman is prohibited by law working in the State or from receiving social welfare payments, counsel said. This child was entitled to child benefit as she is “part of the Irish nation” with the right to be afforded the same benefits as other Irish children, counsel argued.

Mr Justice Noonan said he considered this was an appropriate case for judicial review and he granted leave to bring proceedings challenging those provisions of the Social Welfare Consolidation Act 2005 under which the Department of Social Protection has refused to pay child benefit on grounds the mother does not as of now have a right of residency.

Ms Gillespie also secured leave to challenge the constitutionality of provisions stipulating that back payment of benefit will not be made where an application for residency is successful.

Among various grounds of challenge, it is alleged the refusal of child benefit amounts to discrimination and breaches the personal and family rights of both mother and daughter under the Constitution and European Convention on Human Rights.

The proceedings are against the Minister for Social Protection and the State and have been returned to April next.