A High Court judge has ruled a mother who spent several years in direct provision with her husband and son is entitled to €1,680 compensation from the State over "culpable" delay of a year in determining her application for international protection.
The compensation is based on having been deprived of child benefit over a year-long period.
The immigration service delay between May 2011 and May 2012 in deciding the application was inordinate, breached the rights of the woman and child and also breached the duties of the State under the Constitution and EU law, Mr Justice Michael White had held in a significant recent judgment.
When the case returned before him today, he assessed compensation, based on loss of child benefit of €140 monthly over a year, at €1,680.
While noting he had refused several other declarations and orders sought by the woman, the judge said he would award her all preliminary costs of the case, plus costs of one day of the five day hearing.
He put a stay on his orders, including the compensation order, in the event of an appeal.
In his judgment last week, the judge said the protection application made in May 2007 by the woman, after being refused refugee status, should have been finalised by May 2011.
Protection was granted in May 2012. The couple’s son was born in direct provision in 2007.
Administrative authorities should be conscious of the length of time asylum and protection applicants spend in direct provision, he said. “The direct provision system meets the basis needs of the applicants but is far from ideal.”
The Minister for Justice faces serious issues relating to immigration policy and maintenance of the common travel area with the UK and the direct provision system “has been introduced and operated for that reason”, he said. However, “very lengthy periods in direct provision are undesirable”.
The couple in this case are professionals who found it deeply frustrating they could not work and provide a home for their son instead of what the woman described as the “institutionalised regime” in the direct provision centre, he noted.
Child benefit
The woman sought child benefit for her son after his birth but was refused. After the family got protection in 2012, they got child benefit.
In judicial review proceedings, the mother and child sought various declarations and orders including, because protection was ultimately granted, child benefit should have been paid from his birth.
In his judgment, Mr Justice White said granting subsidiary protection does not oblige the State to backdate child benefit, “a core benefit”.
Provisions of the Social Welfare Consolidation Act excluding persons applying for subsidiary protection from social welfare entitlements, because such entitlements require habitual residence, are not unconstitutional and do not offend the EU 2004 Qualification Directive or Charter of Fundamental Rights of the EU, he said.
There was a delay in granting this mother subsidiary protection but, because of the complicated history of this matter, the effective date of her application was January 2010, he held.
If the Minister for Justice is responsible for culpable delay in considering a subsidiary protection application, the Minister for Social Protection cannot backdate child benefit if a protection claim is successful, he noted.
If a protection applicant is to remain in direct provision for a very lengthy period, it is “incumbent” on the Minister for Justice to ensure their protection application is processed within a reasonable time. Applicants must also process their applications within a reasonable time, he added.
The immigration services could have decided this protection application from April 2010 but the decision was made in May 2012, two years later, with no explanation for that delay. The application should have been finalised by at least May 1st 2011 and the delay, combined with the effect of the law refusing child benefit, breached the constitutional and EU law rights of the mother and son.
