Supreme Court overturns direct-provision welfare ruling

The Supreme Court has overturned a significant finding that a social welfare law preventing payment of child benefit to an Irish citizen child in direct provision solely because of her mother’s immigration status is unconstitutional.

A five-judge Supreme Court ruled on Thursday the Court of Appeal had, in finding unconstitutionality, erred in focusing on the status of the child for whom benefit may be payable rather than on the status of the “claimant” for child benefit, her mother.

Bearing that in mind, the relevant provisions of the Social Welfare Act did not give rise to any inequality of treatment in terms of those entitled to claim child benefit, Ms Justice Elizabeth Dunne held.

Concurring, Mr Justice Donal O’Donnell said the distinction in the Act relates to the “particular” immigration status of the “claimant” for the benefit and not the citizenship of that person or any child.

It is possible to argue the policy “could have been different, and more generous, or its application more nuanced”, but it is “not possible to contend that it impermissibly discriminates, still less on the grounds of citizenship.”

The formal making of a declaration of unconstitutionality concerning Section 246(6) and 246(7) of the 2005 Act had been suspended pending the appeal and will not now proceed.

In their concurring judgments, Ms Justice Dunne and Mr Justice O’Donnell allowed the appeal by the State, represented by Frank Callanan SC, Rory Mulcahy SC and Alex Caffrey BL, over the Court of Appeal’s June 2018 decision. The Chief Justice Mr Justice Frank Clarke, Mr Justice Peter Charleton and Ms Justice Iseult O’Malley agreed.

The appeal concerned two cases, heard together, where the core question was precisely when a child benefit payment arises to parents whose immigration status has not yet been finally determined but where a child of theirs has status as an Irish citizen or refugee.

The four-year-old-girl, referred to as Emma (not her real name), lives 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.

Emma’s mother sought child benefit in October 2015 but was refused until she got residency status in January 2016.

Emma has a hereditary blood disease, and the mother said they were living in difficult circumstances in direct provision.

In finding for Emma, the Court of Appeal said child benefit is “designed for the benefit of the child”, even if made payable to the qualifying parent, and the failure to treat Emma equally to other Irish citizen children breached the equality provisions under Article 40.1 of the Constitution.

In her judgment, Ms Justice Dunne said the Court of Appeal erred in concluding Emma, as an Irish citizen resident here, had a strong claim to be treated in the same way as fellow citizens similarly resident here.

The Court of Appeal should have considered the position of her mother to whom child benefit would be payable provided her mother met the eligibility requirements of the 2005 Act, she said.

Child benefit is payable to a “qualified person” who must be habitually resident in the State and, because Emma’s mother did not have refugee status or permission to reside at the relevant time, she did not have habitual residence.

There was no difference in treatment between the mother and any other qualified person in terms of the habitual residence requirement, she said. Once the mother’s status changed and she got permission to remain on the basis of being the mother of an Irish citizen child, the mother was treated in the same way as any other qualified person.

The 2005 Act thus does not give rise to inequality of treatment in terms of those entitled to claim child benefit, she held.

She held the Court of Appeal made a similar error in the second case in focusing on the position of the child rather than his mother as claimant.

That case involved an Afghan couple and their four children living in direct provision who got permission to remain here in September 2015 on the basis of their youngest child, referred to as Michael, aged six, getting refugee status in January 2015.

Ms Justice Dunne held the Court of Appeal erred in finding child benefit should have been payable to the mother from the date upon which Michael secured refugee status rather than when the family got permission to remain.