The Court of Appeal declared Sections 246(6) and 246(7) to be unconstitutional as it prevents payment of child benefit to Irish child due to immigration status of parent.
The applicants are two families, the Agha family and the Osinuga family. Mr and Ms Agha arrived in Ireland in 2008. The couple have four children, one born in Pakistan and three born in Ireland. The couple had false Pakistani documents when they entered Ireland and it was subsequently found that they had Afghani citizenships. The applied for asylum in 2013. Their youngest child was granted refugee status in 2014 and the family applied for family reunification under Section 18 of the Refugee Act 1996. The family were then given permission to remain in the State in September 2015.
Ms Agha had applied for child benefit for all of her children in February 2015. This application for child benefit was rejected as it was stated that she did not satisfy the habitual residence condition. Section 246 of the Social Welfare Consolidation Act 2005 requires individuals to have permission to remain in the State before they can qualify as habitual resident. After the family were granted permission to remain, Ms Agha made another application for child benefit. The application for the child benefit was granted. The issues brought before the court was whether child benefit should have been paid at the time their application for asylum was submitted or whether child benefit should have been paid for Daniel from the date of his refugee status being granted.
The second applicant, Ms Osagie, arrived in Ireland in 2013 and applied for asylum in November 2014. She began a relationship with Mr Osinuga, an Irish citizen, in 2014 and gave birth to their daughter, Victoria, in December 2014. Their daughter was an Irish citizen from birth. In 2015 Ms Osagie applied for the recognition of Zambrano rights. In October 2015 an application was made by Ms Osagie for child benefit. Her application was rejected on the grounds that she was not a qualifying parent, under Section 246 of the 2005 Act, as she did not have the right to reside in Ireland. The Minster for Justice and Equality acknowledged that Ms Osagie only had a right to reside in Ireland under the Zambrano rights.
The matter went before the High Court. In the Agha case, White J. stated that Section 246 of the 2005 Act, which prevented the payment of child benefit, was not unconstitutional. White J. held that the Section was not discriminatory as it applied equally to all Irish citizens and residents. While the court had some concerns over Section 246(8) of the 2005 Act, it held that the Act ‘is consistent with the regime that the State has put in place.’
The Refugee Act 1996 states that refugees can avail of the social welfare benefits that are available to Irish citizens subject to the terms and conditions. Refugees must however fulfil the conditions laid out in the 2005 Act. The 2005 Act makes child benefit payable to a ‘qualified child’ who is ordinary resident in the State. The adult claiming child benefit on behalf of the child must also be a ‘qualified person’.
In the matter of the Osinuga appeal, the question for the court to consider was whether an Irish citizen child who was ordinary resident in Ireland could be denied child benefit due to the immigration status of her mother. The court held that Victoria is not being treated equally before the law, as other Irish children who are resident in Ireland, can receive child benefit. The court nevertheless recognises that the family received payments when living in direct provision. The court held that excluding the payment of child benefit from persons whose immigration status was uncertain was important for immigration and public policy. However, this has come at the expense of the child who is prevented from receiving the payment.
In the matter of the Agha appeal, it was argued that the parents should have been entitled to child benefit from the date that Daniel was granted refugee status. The court noted that there was a difference in the position between Victoria and Daniel. Victoria as an Irish citizen was also entitled to child benefit, however, Daniel only became entitled to the payment once he was granted refugee status. As such it was not unconstitutional to deny Daniel payment before his refugee status was granted. Nonetheless, Article 28 of the Qualification Directive does not allow child benefit to be refused on the ground that the parent applying for it does not have refugee status.
In conclusion, the court found that Section 246 of the 2005 Act was unconstitutional as it applied to the Osinuga case. Section 246 prevented the payment of child benefit to an Irish child based solely on the fact that her mother was not entitled to remain in the State. The court held that backdated payments for child benefit should be paid to Victoria’s mother. In the Agha case the court concluded that Section 246 of the 2005 Act is incompatible with Article 28 of the Qualification Directive and as such should be considered inapplicable in the national courts. To facilitate the Government in making the necessary changes to the legislation a stay until 1 February 2019 has been placed on the formal finding of unconstitutionality.
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