Irish Supreme Court overturns Court of Appeal finding of failure to pay child benefit to children in direct provision unconstitutional

The Irish Supreme Court has overturned a ruling of the Court of Appeal that declared failure to pay child benefit to children in direct provision unconstitutional due to discrimination based on immigration status.

The State’s appeal joined two cases together, the key issue in both concerning a child benefit payment claimed by parents whose immigration status had yet to be determined and their child had the status of Irish citizen. One concerned Emma, an Irish citizen with a Nigerian mother, while the other concerned Michael, an Afghan child with refugee status.

The Court of Appeal had said that child benefit is “designed for the benefit of the child”, even though it is claimed by the parent and the failure of the State to treat an Irish citizen child in the same way as other Irish children breached the equality guarantee under Article 40.1 of the Constitution.  The Court went on to say that certain provisions of the social welfare legislation which prevented child benefit being paid to an Irish citizen child in direct provision because of her mother’s immigration status was unconstitutional. A formal declaration of unconstitutionality was suspended pending the State’s appeal to the Supreme Court.

In allowing the State’s appeal in Emma’s case, the Supreme Court said that the Court of Appeal had erred by focusing on the immigration status of the beneficiary of the benefit (the child), and not the claimant of the benefit (her mother). Under the 2005 Social Welfare Act, child benefit is paid to a “qualified person” who is “habitually resident in the State”. As Emma’s mother did not have permission to reside here, she could not be classified as being habitually resident and was therefore not a “qualified person” for the purposes of the Act. Ms Justice Dunne explained that, once Emma’s mother’s status changed and she became habitually resident, she was treated in the same way as her fellow qualified persons. There was, therefore, no inequality among people qualified for child benefit under the legislation.  

Mr Justice O’Donnell concluded by adding that it could be argued that the policy “could have been different, and more generous, or its application more nuanced but it is not possible to contend that it impermissibly discriminated, still less on the grounds of citizenship.”

Click here for the decision in O v Minister for Social Protection and A v Minister for Social Protection.

Click here for a previous Bulletin article of the Court of Appeal decision.





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