Agha (A Minor) v Minister for Social Protection

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 05 June 2018
• Neutral Citation: [2018] IECA 155
• Date: 05 June 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 155 Record No. 2017/79 No. 2017/76

[2018] IECA 155

THE COURT OF APPEAL

Hogan J.

Peart J.

Irvine J.

Hogan J.

Neutral Citation Number: [2018] IECA 155

Record No. 2017/79

No. 2017/76

IN THE MATTER OF THE CONSTITUTION OF IRELAND

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

BETWEEN/

DANIEL AGHA (A MINOR), MARIA KHAN (A MINOR), NAYMATULLIH KHAN (A MINOR), RAHMAT AGHA (A MINOR), (ALL SUING THROUGH THEIR MOTHER AND NEXT FRIEND SHAZIA AGHA) ZAYED AGHA

AND

SHAZIA AGHA

APPLICANTS

AND

MINISTER FOR SOCIAL PROTECTION, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

AND

IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTY

BETWEEN/

- AND -

THE MINISTER FOR SOCIAL PROTECTION,

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Child benefit – EU law – Constitutionality – Applicants seeking child benefit – Whether applicants were entitled to child benefit

Facts: The issue raised in the Agha appeal was whether child benefit was payable in respect of all four children from the date of their applications for refugee status in 2013 or, alternatively, whether such payment was payable in respect of D (the first applicant) with effect from the date of his recognition as a refugee in January 2015. The issue raised in the Osinuga appeal was whether Ms Osagie (the second applicant) was entitled to child benefit with effect from the date of first application to the Minister for Social Protection (the first respondent) in October 2015. In the High Court, White J delivered a single judgment dealing with both cases. As far as the Agha appeal was concerned, White J held that the statutory exclusion contained in s. 246 of the Social Welfare Consolidation Act 2005 preventing the payment of child benefit prior to the grant of status to the parents was not unconstitutional. So far as the Aghas were concerned, White J held that the failure to pay backdated child benefit was not a breach of EU law or a breach of Article 23 of the Geneva Convention. Both appellants accordingly appealed to the Court of Appeal against that particular decision.

Held by Hogan J that, in the case of the Osinuga appeal, the State cannot provide an objective justification for what in substance of the statutory exclusion of V (the first applicant) as an Irish citizen resident in the State from eligibility for child benefit prior to the grant of status to her mother in January 2016; accordingly, this statutory exclusion constitutes a breach of the equality provisions of Article 40.1 of the Constitution. Insofar, therefore, as s. 246(6) and s. 246(7) of the 2005 Act prevents the payment of child benefit in respect of an Irish citizen child resident in the State solely by reason of the immigration status of the parent claiming such benefit, Hogan J held that these provisions must be adjudged to be unconstitutional; it was nonetheless appropriate that, save insofar as it concerned the rather small payment of backdated child benefit due in the specific case of V and Ms Osagie, that declaration should remain otherwise suspended until the 1st February 2019. Hogan J held that, in the case of the Agha appeal, the statutory requirement that the qualifying parent must also have a legal entitlement to reside in the State cannot be regarded as unconstitutional. Hogan J held that as D was not a citizen, his entitlement to reside in the State was purely contingent on a statutory entitlement to which the Oireachtas may attach conditions, one of which is that any parent who claims that benefit must also have an entitlement to reside in the State. Hogan J observed that, so far as the claim based on Article 23 of the Geneva Convention was concerned, the Convention is not, as such, part of EU law. So far as social security payments were concerned, Hogan J noted that Article 28 of the Qualification Directive (Council Directive 2004/83/EC) provides that there is no right to such benefits prior to the grant of refugee or subsidiary protection status; accordingly, with the exception of D, Ms Agha (the sixth applicant) had no entitlement to claim such benefits in respect of the other three children (the second, third and fourth applicants) prior to the family reunification decision in September 2015. Hogan J held that, as D was recognised as a refugee in January 2015, Ms Agha was entitled to child benefit payment in respect of him as and from that date in accordance with Article 28 of the Qualification Directive. Hogan J held that, insofar as s. 246(6) and s. 246(7) of the 2005 Act preclude this payment, these provisions must be regarded as inapplicable under the Simmenthal doctrine (Case 106/77 Amministratzione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629) and a purely national court has no jurisdiction to suspend that finding of inapplicability as this would otherwise compromise the uniformity and supremacy of EU law.

Hogan J held that he would allow the appeal only to the extent indicated in his judgment and would also hear counsel as to the form of the order.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 5th day of June 2018

1 Can the Oireachtas legitimately withhold the payment of child benefit to an Irish citizen child resident in the State and otherwise satisfying all the relevant statutory conditions because of the immigration status of the parent claiming that benefit? That essentially is the issue presented on these two appeals from the decision of the High Court (White J.) delivered on the 17th January 2017: see Agha and Osinuga v. Minister for Social Protection [2017] IEHC 6. It may be convenient first to narrate the background facts of both cases.

2 Given the proliferation of appellants and simply in order to avoid confusion, I propose to use the first names of the respective children in these appeals. I trust that it will be understood that no discourtesy is thereby intended.

The background facts of the Agha appeal

3 Mr. Zayed Agha and Ms. Shazia Agha are both Afghan nationals who arrived in the State in 2008. They resided within the direct provision system from May 2008 to the 1st December 2008, and from the 1st June 2010 onwards. They have four children, Rahmat born in Pakistan on the 20th May2006; Naymatullah born in Ireland on the 10th August 2008; Maria born on the 26th July 2009 in Ireland and Daniel born on the 5th April 2013 in Ireland.

4 As it happens Mr. and Ms. Agha were treated as Pakistani nationals on their first arrival in the State as they originally had Pakistani identity documents which were false. Their Afghan citizenship was subsequently established and the entire family - if somewhat belatedly - made applications for asylum in 2013. In December 2014 Refugee Appeals Tribunal issued a decision declaring their youngest son, Daniel, to be a refugee and this decision was communicated by letter of the 8th January 2015 from the Irish Naturalisation and Immigration Service.

5 The other members of the family then immediately applied for family re-unification pursuant to the provisions of s. 18 of the Refugee Act 1996. Permission to remain on the status was granted to the other family members in September 2015.

6 Ms. Agha then made an application for child benefit in respect of all of her four children on the 19th February 2015. The Minister for Social Protection replied by letter dated the 2nd April 2015 and in it she 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 application and you do not, as yet, have the right to reside in the State. Section 246 of the Social Welfare Consolidation Act 2005 (as amended), explicitly states that a person who has not been granted permission to remain in the State shall not be regarded as being habitually resident.'

7 It is this refusal which has given rise to the present proceedings for reasons I will presently explain. Following the decision, however, to grant family reunification in September 2015, a fresh application for child benefit was then made. On this occasion the application was granted by decision dated the 16th October 2015. Child benefit was then paid with effect from the date of the grant of the family unification decision in September 2015.

8 The particular issue raised in the Agha appeal is whether child benefit was payable in respect of all four children from the date of their applications for refugee status in 2013 or, alternatively, whether such payment was payable in respect of Daniel with effect from the date of his recognition as a refugee in January 2015.

The background facts of the Osinuga appeal

9 So far as the Osinuga proceedings are concerned, the issue arises in the following circumstances. The second named appellant, Ms. Osagie, is a citizen of Nigeria. She entered the State in 2013 and she subsequently applied for asylum on the 21st November 2014. During the early part of 2014 she entered into a relationship with Mr. Olusegun Osinuga, a naturalised Irish citizen. The first applicant, Ms. Victoria Osinuga, was born on the 23rd December 2014 and she is an Irish citizen from birth. For convenience I propose to describe her as Victoria.

10 The relationship between Ms. Osagie and Mr. Osinuga has, however, broken down. Ms. Osagie enjoys sole custody of Victoria, with Mr. Osinuga enjoying occasional visits to spend time with her. Following the birth of Victoria on the 23rd December 2014, Ms. Osagie applied on the 9th September 2015 to the Irish National Immigration Service for recognition of Zambrano rights – the right to reside and work in this State premised upon parentage of an Irish and EU citizen child.

11 In late January 2015 Ms. Osagie...