The Irish High Court has quashed a decision of the Department of Employment Affairs and Social Protection which refused to grant maternity benefit to an undocumented worker.
The applicant is a citizen of Mauritius, who came to Ireland in 2008 as a student on a stamp 2 visa. In 2011, the applicant wrote to the Irish Naturalisation and Immigration Service requesting that she be granted stamp 4 permission as her visa was due to expire in 2012, but this was refused. The applicant once again requested a change in immigration status in 2016, and this was rejected as she did not have permission to remain in the State at the time of application.
She later applied under the new Special Scheme for Students, and was granted a stamp 4S visa for a period of two years from February 2019. The applicant, however, was in employment during the period where she did not have permission to reside or work in Ireland. She became pregnant, starting maternity leave in December 2018 and giving birth in January 2019. The applicant applied for maternity benefit in April 2019, at a time when she was legally resident in the State. The maternity benefit was refused as the applicant did not have a valid work permit, meaning her employment was not insurable. The Deciding Officer found that as the applicant did not have a valid Garda National Immigration Card or work permit, any employment she was engaged in was not legal and any PRSI contributions made were not valid.
The High Court did not agree that a contract made in breach of the Employment Permits Act 2003 is illegal, unenforceable, and void for the purposes of the Social Welfare Consolidation Act 2005. The Court acknowledged that the position is nuanced and involves a weighing up of competing principles and factors as set out by the Supreme Court in Quinn v IBRC.
The Court stated “It might be said that to deny an otherwise payable Maternity Benefit on the grounds that an undocumented worker’s contract is, of necessity, void for illegality, undermines a purpose of the 2003 Act, insofar as a purpose is to prevent exploitation of vulnerable workers and encourage same to engage with the State in a positive fashion. It could hardly be argued that the mother of a very young child is not someone in need of support which Maternity Benefit legislation had as a statutory aim to provide. An imposition of voidness such as to deny a Maternity Benefit entitlement, otherwise payable, plainly defeats a statutory aim of Maternity Benefit provisions”.
As such, the Minister of Employment Affairs and Social protection erred in law by simply identifying the illegality of the contract and taking the view that the contract was necessarily void.
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