The Court of Appeal has found that provisions of the Social Welfare Act which prevented child benefit payments to an Irish citizen child living in direct provision until her mother got residency here are unconstitutional.
In a significant judgment, the court suspended until February 1st 2019 the formal making of a declaration of unconstitutionality concerning Section 246(6) and 246(7) of the 2005 Act.
The three year old girl lives in direct provision with her Nigerian mother. Her father is a naturalised Irish citizen but the couple’s relationship broke down sometime after her birth.
Her mother sought child benefit in October 2015 but was refused until she got residency status in January 2016. The mother said her daughter has a hereditary blood disease and they are living in difficult circumstances in direct provision with a weekly allowance of €43.
Child benefit is "designed for the benefit of the child", even if it is made payable to the qualifying parent, Mr Justice Gerard Hogan said in the court of appeal judgment on Tuesday.
The failure to treat this child equally to other Irish citizen children breached the equality provisions under Article 40.1 of the Constitution, he found.
While the declaration of unconstitutionality would be suspended to February, the small amount of backdated benefit covering the period between October 2015 and January 2016 should be paid, he directed.
In a related case involving an Afghan couple and their four children also living in direct provision who got permission to remain here on the basis of their youngest child securing refugee status, he ruled, because the now five year old boy is not a citizen, he was not entitled to child benefit until he was recognised as a refugee in January 2015.
There was no entitlement to claim child benefit for the couple’s three other children prior to the September 2015 decision permitting the family remain here, he also held. The State “cannot generally be expected to make social security payments to persons with no right to reside here”.
Insofar as Section 246(6) and 246.7 of the 2005 Act precluded payment of child benefit to the youngest child from the date he got refugee status, those were contrary to Article 28 of the 2004 Qualification Directive concerning social assistance payments for refugees, he also ruled.
Article 28 does not permit the payment to be withheld because the parent applying for it did not then have immigration status, he said. He also did not consider a national court has any jurisdiction to suspend a finding of invalidity under the Directive as that would compromise the uniformity and supremacy of EU law.
Mr Justice Michael Peart and Ms Justice Mary Irvine agreed with his findings.
The key finding in the case of the girl was the State could not provide an objective justification for her “statutory exclusion”, as an Irish citizen child resident in the State, from child benefit prior to her Nigerian mother getting residency status in January 2016.
It was plain this child is not being treated equally with her peers, he found.
The court's judgment concerned appeals by the two families against a High Court decision they are not entitled to have child benefit payments backdated. A number of cases raising similar issues are outstanding.
The families, represented by Derek Shortall, got residency rights on the basis their children were born here.
In the case of the three year old girl, her mother applied for child benefit in October 2015 but was refused because her residency application had yet to be decided. In January 2016, the mother got permission to remain and was granted child benefit.
The Court of Appeal ruled, as an Irish citizen child, the girl was entitled to child benefit from the date of her mother’s first application in October 2015 and her exclusion from that was unconstitutional.
The other appeal concerned an Afghan couple who came here in 2008 and lived in direct provision from May to December 2008 and from June 2010 onwards. Three of their four children were born here. They sought asylum in 2013 and in September 2015 got permission to remain after the youngest son was declared to be a refugee.
After they got residence in September 2015, child benefit was paid but they argued benefit was payable from the date of their applications for refugee status in 2013 or from January 2015, when the youngest child secured refugee status.
Mr Justice Hogan said the requirement the qualifying parent for benefit must also have a legal entitlement to reside in the State is not unconstitutional and the key difference between this and the other case “is that of citizenship”.
The Department of Social Protection said on Tuesday night it will take action to pay the arrears of child benefit in these cases as directed by the court.
“The Department will also consider the wider implication and the requirement for legislative change to give effect to the ruling,” it said.