State appeals finding on law stopping benefit payment to child in direct provision

The four-year-old girl, an Irish citizen, is living in direct provision with her Nigerian mother


The Supreme Court has agreed to hear an appeal by the State over a finding that a law preventing the payment of child benefit to an Irish citizen child living in direct provision because of the immigration status of her mother is unconstitutional.

The Court of Appeal had suspended until February 1st formally making a declaration of unconstitutionality concerning Section 246(6) and 246(7) of the Social Welfare Consolidation Act 2005 insofar as they prevent payment of child benefit for an Irish citizen child resident here solely by reason of the immigration status of the parent claimant.

The judgment was given in a case of a four-year-old girl living 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.

The child was born in late 2014 but child benefit was refused until January 2016 when her mother got residency. The mother said her daughter has a hereditary blood disease and they were living in difficult circumstances in direct provision.

Section 246 requires both child and parent must be habitually resident in the State for child benefit to be paid. A person will not be considered habitually resident unless they have a right of residence. The mother claimed an entitlement to payment from the date of her daughter’s birth and contended Section 246 was unconstitutional, contrary to EU law and incompatible with the European Convention on Human Rights.

In the appeal court’s judgment of June 2018, Mr Justice Gerard Hogan said the exclusion of a citizen from a universal payment called for a high level of justification having regard to the equality provision in Article 40.1 of the Constitution and such justification had not been demonstrated.

The fact the State was providing for mother and child in direct provision did not offer justification, since child benefit was payable without regard to means and involved the State acknowledging its interest in making an important contribution to the welfare of all children resident here, he said.

In its published determination agreeing to hear the State’s appeal, the Supreme Court said the State argues the appeal court decision has characterised child benefit as a benefit to which a child is entitled, notwithstanding it is paid to an adult. That characterisation affected the question of whether persons were being treated alike and will potentially affect other welfare payments.

The State also considered the effect of the declaration would involve striking down the entirety of the two subsections with consequences for other, unrelated welfare payments depending on the concept of habitual residence.

It said there was no objective justification for the habitual residence requirement and also said there was insufficient regard to the supports provided through direct provision.

In opposing a further appeal, the respondents argued the COA decision was not of general public importance and disputed much of the State’s interpretation of the judgment.

In granting permission for an appeal, the Supreme Court said it accepted the appeal court’s characterisation of child benefit as a payment to a child rather than parent, with the consequence the issue was seen as discrimination between citizen children, has important potential consequences beyond this case.

This issue cannot be treated in isolation and the State was entitled to argue the additional grounds identified, it said.

The Supreme Court has also agreed to hear a separate but related appeal involving an Afghan couple and their four children also living in direct provision who secured permission to remain here on the basis of their youngest child securing refugee status. In that case, the appeal court ruled that because the youngest boy is not a citizen, he was not entitled to child benefit until he was recognised as a refugee in January 2015.