Agha (A Minor) v Minister for Social Protection
| Jurisdiction | Ireland |
| Judge | Mr. Justice White |
| Judgment Date | 17 January 2017 |
| Neutral Citation | [2017] IEHC 6 |
| Date | 17 January 2017 |
| Court | High Court |
| Docket Number | [2015 No. 366 J.R.] [2015 No. 682 J.R.] |
[2017] IEHC 6
THE HIGH COURT
JUDICIAL REVIEW
White Michael J.
[2015 No. 366 J.R.]
[2015 No. 682 J.R.]
IN THE MATTER OF THE SOCIAL WELFARE CONSOLIDATION ACT 2005 (AS AMENDED) THE CONSTITUTION, THE REFUGEE ACT 1996 (AS AMENDED), E.C. DIRECTIVE 2004/83, E.U. REGULATIONS 883/2004 AND 987/2009, THE E.U. CHARTER OF FUNDEMENTAL RIGHTS AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003
AND
AND
AND
AND
Asylum, Immigration & Nationality – The Social Welfare Consolidation Act 2005 – The Refugee Act 1996 – Directive 2004/83 – Refusal to pay child benefits – Necessity of fulfilment of requirement of habitual resident – Application of direct provision system
Facts: -The main issue in the present two separate sets of proceedings was the denial of child benefits to the children born in Ireland to the parties by the first named respondent namely, the Minister for Social Protection ('Minister') on the basis that the mother of the children was not habitually a resident in the State. The applicants in both the sets of proceedings were granted leave to remain in the State based on the parentage of their respective children. The respondent contended that child benefit was a payment made to the qualified person and it was not an automatic right but dependent upon the fulfilment of criteria laid down under part 4 of the Social Welfare Consolidation Act 2005. The applicants also argued that child benefits should be backdated to the date of the first application for asylum.
Mr. Justice White refused to grant the desired relief to the applicants in both the sets of proceedings. The Court held that s. 248 (8) of the Act of 2005 had restricted the designation of habitual residence for any period before the date on which the status of refugee was granted to the applicant and thus, there was no discretion conferred to the Minister to backdate the benefits prior to that date. The Court held that there was no illegality in the impugned decision as the applicants in both the sets of proceedings were receiving assistance through direct provision system. The Court found that the habitual residence provisions contained in the Act was not unconstitutional as the contracting States did enjoy a degree of latitude in framing its own policies keeping in mind its society and its needs. The Court held that the requirement that an applicant must be a habitual resident of the State before he/she could claim child benefits was in accordance with law and relevant EU provisions.
By order of this court on 29th June, 2015, the applicants in the first action were given leave to apply for judicial review seeking the following reliefs.
(a) An order of certiorari quashing the decision of the first named respondent dated 2nd April, 2015, refusing to grant the payment of child benefit, including arrears of payment, to the sixth named applicant for the benefit of the first to fourth named applicants.
(b) Without prejudice to the foregoing an order of certiorari quashing the decision of the first named respondent dated 2nd April, 2015, insofar as the said decision refuses to grant the payment of child benefit, including arrears of payment, to the sixth named applicant for the benefit of the first applicant.
(c) A declaration that as a recognised refugee the first named applicant is entitled to receive the benefit and support of child benefit, by way of payment to the sixth named applicant.
(d) A declaration that as a refugee since birth the first named applicant is entitled to arrears of child benefit by way of payment to the sixth named applicant, from his birth and/or when he first applied for refugee status and/or from twelve months prior to the application for child benefit made by the sixth named applicant.
(e) A declaration that the second to fourth named applicants are entitled to receive the benefit and support of child benefit, by way of payment to the sixth named applicant from the date of application for child benefit.
(f) Without prejudice to the foregoing if necessary a declaration that the first to fourth named applicants are entitled to receive payment of arrears of child benefit by way of payment to the sixth named applicant, from the date of application for child benefit to the date the sixth named applicant is granted formal permission to remain in the State.
(g) A declaration that ss. 220 (3), 246 (5) and 246 (7) of the Social Welfare Consolidation Act, 2005 (As amended), taken individually and/or in a combination with each other, are repugnant to the Constitution and in breach of EU law.
(h) A declaration that s. 246 (8) of the Social Welfare Consolidation Act, 2005 (As amended) is repugnant to the Constitution and in breach of European law.
(i) A declaration that ss. 220 (3), 246 (5), 246 (7) and 246 (8) of the Social Welfare Consolidation Act, 2005 (as amended) taken individually and/or in combination with each other, unlawfully denied the first named applicant his rights and entitlements pursuant to ss. 3(2) (ii) and 18 (3) of the Refugee Act 1996 (as amended) and Articles 20, 23 and 28 of EC Directive 2004/83.
(j) Damages for breach of the applicants' constitutional rights.
(k) Damages for breach of the applicants' EU law rights.
(l) If necessary, a declaration pursuant to s. 5, European Convention of Human Rights Act 2003, that s. 220(3) and/or s. 246(5) and/or (7) and/or (8) of the Social Welfare Consolidation Act 2005 (as amended) taken individually or together are incompatible with the Convention.
(m) Further or other order including, if necessary, an order extending the period within which the application herein be made.
(n) Costs.
The application was grounded on the affidavit of the sixth applicant sworn on 25th June, 2015, together with exhibits. An originating motion dated 7th July, 2015, was issued returnable for 20th October, 2015. A statement of opposition on behalf of the defendants was filed and served on 5th November, 2015. Tina Burns, Assistant Principal Officer of the Department of Social Protection swore an affidavit on behalf of the defendants on 5th November, 2015. Eugene Banks, Principal Officer in the Department of Justice and Equality swore an affidavit on 10th November, 2015, dealing with the direct provision system for those who have applied for asylum or applied to remain resident in the Republic of Ireland. The sixth applicant swore an affidavit in reply to this on 11th January, 2016. The matter was at hearing on 10th, 11th, 12th and 31st May, 2016 and judgment was reserved.
The facts of the case are undisputed. The fifth and sixth applicants are citizens of Afghanistan who came to Ireland in May 2008 and resided within the direct provision system from May 2008 to 1st December, 2008, and from 1st June, 2010 onwards. They have four children, Rahmat born in Pakistan on 20th May, 2006; Naymatullah born in Ireland on 10th August, 2008; Maria born on 26th July, 2009 in Ireland; and Daniel born on 5th April, 2013 in Ireland.
On first arrival in Ireland in 2008, the fifth and sixth applicants were treated as Pakistani nationals as they originally had Pakistani identity documents which were false.
Subsequently, their citizenship of Afghanistan was established by way of passports and identity papers. The original decision was to transfer the family to the United Kingdom under EU rules but the fifth and sixth applicant went into hiding. Subsequently, deportation orders were signed by the Minister for Justice in March 2012, on the basis that they were Pakistani nationals.
However, once their Afghanistan citizenship was established, the youngest son, Daniel, the first applicant made an application for refugee status. The Refugee Appeals Tribunal on appeal from the Refugee Applications Commissioner issued a decision in writing on 9th December, 2014, declaring the first applicant to be a refugee. This was communicated by letter of 8th January, 2015, to the first applicant from the Irish Naturalisation and Immigration Service.
Subsequently, on 14th January, 2015, the fifth and sixth applicants together with the remaining members of their family applied pursuant to s. 18 of the Refugee Act 1996 for family reunification. That permission was granted on 11th September 2015, by letter from the Irish Naturalisation and Immigration Service when the family were permitted to remain with the first applicant, Daniel.
There is no allegation in this case that there was any culpable delay on dealing with the application for refugee status of the first applicant or the application to remain of the rest of the family.
The sixth applicant made an application for child benefits for all her children on 19th February, 2015, and the first respondent issued a written decision on 2nd April, 2015, claim reference No. 1415262E. The letter stated as follows:-
'I refer to your claim for child benefit made on 19th February, 2015.
One of the qualifying conditions for receipt of child benefit is that you must be habitually resident in this State. I have decided that you do not satisfy the condition of being habitually resident in this State for the following reason.
You are awaiting a decision from the Department of Justice and Equality on your residency...
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