DN v Chief Appeals Officer

• Jurisdiction: Ireland
• Judge: Mr. Justice White
• Judgment Date: 16 February 2017
• Neutral Citation: [2017] IEHC 52
• Docket Number: [2014 No. 306 J.R.]
• Court: High Court
• Date: 16 February 2017

[2017] IEHC 52

THE HIGH COURT

JUDICIAL REVIEW

White Michael J.

[2014 No. 306 J.R.]

BETWEEN

D N (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, A S), A S

APPLICANTS

AND

THE CHIEF APPEALS OFFICER, THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL, IRELAND

AND

THE MINISTER FOR SOCIAL PROTECTION

RESPONDENTS

Asylum, Immigration & Nationality – Appeal against the decision of the Chief Appeals Officer – Certiorari – S. 246 of the Social Welfare Consolidation Act 2005 – Child benefit – Grant of subsidiary protection – Council Directive 2004/83/EC.

Facts: The applicants sought an order of certiorari for quashing the decision of the first respondent for refusing to backdate the applicants' application for child benefit for the benefit of the first applicant/minor. The second applicant/mother contended that since there was considerable delay in granting her subsidiary protection, the first applicant/minor was entitled to receive child benefit from the date on which the second applicant had made her application for international protection.

Mr. Justice White granted a declaration to the applicants to the effect that the delay in granting subsidiary protection to the second named applicant was inordinate and breach of the applicants' rights and duties of the second, third and fourth respondents under the European law and the Constitution. The Court held that the second applicant was entitled to compensation on ground of delay. The Court held that the grant of subsidiary benefit did not mandate the State to backdate child benefit. The Court noted that under s. 246 (8) (c), the fifth respondent was barred from backdating any child benefits prior to the date on which the declaration of subsidiary protection was granted.

JUDGMENT of Mr. Justice White delivered on the 3rd of February, 2017

1 The applicants issued an ex parte docket on 26th May, 2014, together with a statement to ground application for judicial review, an amended statement and the grounding affidavit of the second applicant, sworn on 24th May, 2014, with exhibits.

2 By order of leave of 26th May, 2014, Peart J. granted the applicants leave to apply by way of application for judicial review for the following reliefs:-

(i) an order prohibiting the identification of the first and second named applicants, the first named applicant being a minor and the second named applicant being a person who has been granted international protection in the State;

(ii) an order of certiorari quashing the decision of the first named respondent dated 27th February, 2014, to refuse to backdate the applicants' application for child benefit in respect of and for the benefit of the first named applicant prior to 1st May, 2012;

(iii) a declaration that the first named applicant is entitled to the support and assistance derived from child benefit from the date of his birth and the second named applicant, his mother is entitled to receive child benefit in respect of and for the benefit of the first named applicant from that date in light of the granting of subsidiary protection status to the said second named applicant on foot of her application for international protection which was made in the State on or about 26th January, 2006, or in the alternative that they are so entitled from the date of the application for child benefit made on behalf of the first named applicant by the second named applicant on 18th February, 2008;

(iv) a declaration that ss. 246(7)(b) and 246(8)(c) of the Social Welfare Consolidation Act 2005, as amended are in breach of European Union law including the Charter of Fundamental Rights of the European Union repugnant to the Constitution and incompatible with the European Convention on Human Rights;

(v) a declaration that the delay in granting subsidiary protection to the second named applicant was inordinate and in breach of the applicants' rights and of the duties of the second, third and fourth named respondents under European Union law, the Constitution and section 3 of the European Convention on Human Rights Act 2003;

(vi) as a consequence of the delay referred to in para. V, damages for the loss of child benefit in respect of the first named applicant caused by the unlawful delay in processing and determining the second named applicant's application for subsidiary protection;

(vii) such further or other order as to this Honourable Court shall meet; and

(viii) an order providing for costs.

3 A motion was issued on 29th May, 2014, originally returnable for 15th July, 2014. A statement of opposition was filed and served on 10th November, 2014. The following further affidavits were filed and served.

• Affidavit and exhibit of Noel Dowling, Principal Officer, in the Reception and Integration Agency of second respondent dealing with the system of direct provision sworn on 11th November, 2014.

• Affidavit of Chris Carroll, Assistant Principal Officer of the second respondent dealing with the application for subsidiary protection.

• Affidavit of Tina Burns, Assistant Principal Officer with responsibility for child benefit of the fifth respondent sworn on 10th November, 2014, together with exhibits.

• Affidavit of Patrick McKenna, manager of Mosney Accommodation Centre, Mosney, Co. Meath, together with exhibits sworn on 12th November, 2014,

• Second affidavit of Patrick McKenna and exhibit sworn on 17th November, 2014,

• Supplementary affidavit and exhibits of second applicant sworn on 13th March, 2015.

• Affidavit of Michael Farrell, Solicitor for the applicants together with exhibits sworn on 16th March, 2015.

• Second affidavit of Tina Burns sworn on 12th March, 2015.

• Affidavit of Ben Ryan, sworn on 2nd June, 2015, together with exhibit.

• Supplemental affidavit of Michael Farrell sworn on 13th August, 2015, together with exhibits.

• Affidavit of Mary O'Sullivan, Principal Officer in the International Division of the fifth respondent sworn on 9th November, 2015, together with exhibit.

• Third affidavit of Tina Burns sworn on 9th November, 2015, together with exhibit.

• Second affidavit of Ben Ryan sworn on 10th November, 2015, together with exhibits. The matter was at hearing on 4th 5th May and 28th, 29th and 30th June, 2016, and judgment was reserved.

Brief History of Application for Refugee Status and Subsidiary Protection

4 The second applicant and her husband, P, reside in North County Dublin and are the parents of the first applicant who was born in Ireland on 31st December, 2007. On 26th January, 2006, the second applicant came to Ireland and applied for asylum seeking refugee status. Her husband also applied. Their application for refugee status was refused in the case of her husband on 11th January, 2007 and in the case of the second applicant on 2nd March, 2007. The second applicant and her husband then applied for subsidiary protection pursuant to the European Communities (Eligibility for Protection) Regulations 2006 ( Statutory Instrument No. 518 of 2006) and made further representations for leave to remain in the State pursuant to s. 3 of the Immigration Act 1999. These applications were made on behalf of the second applicant's husband on 12th March, 2007 and in her own case on 10th May, 2007. Separately, judicial review proceedings were issued in respect of the refusal of the Refugee Appeals Tribunal to grant refugee status. Those proceedings were issued on 22nd May, 2007 [2007 No. 581], and were listed for hearing on 13th February, 2009. The second applicant's solicitors had sourced significant new country of origin information and it was agreed that the judicial review proceedings be struck out on 4th February, 2009. The second applicant and her husband requested to re-enter the refugee determination procedure but this was refused on 14th December, 2009.

5 By letters of 6th January, 2010 and 25th January, 2010, the second applicant and her husband made applications for subsidiary protection. When the second applicant made an application for subsidiary protection on 10th May, 2007, consideration of same was suspended pending the judicial review proceedings in respect of the Refugee Appeals Tribunal decision. The effective date of her application for subsidiary protection was the 25th January, 2010. Further representations were made by the second applicant on 1st February 2010,17th April, 2010 and 18th January, 2011. The second applicant was granted subsidiary protection by letter of 1st May, 2012, from the Irish Naturalisation and Immigration Services (INIS).

Applications made for Child Benefit by the Second Named Applicant

6 The second applicant made several applications for child benefit in respect of the first named applicant. The first application was made on 4th April, 2008. This was refused on 17th May, 2008. She made a further application on 27th September, 2008, received by the department on 22nd October, 2008 and this was refused on 11th February, 2009. These refusals were appealed and the appeal was rejected on 7th September, 2009. She made a third application on 27th February, 2013.

7 By letter of 24th April, 2013, the second applicant was notified that she had been awarded child benefit for the first named applicant with effect from 1st May, 2012. She appealed that decision and by decision communicated to her on 27th February, 2014, the appeals officer rejected the appeal. It is that decision of the appeals officer which is the subject of these judicial review proceedings.

8 This decision recites as follow:-

'The appellant sought to have the child benefit claim awarded from either the date her child was born or the date of her application. She has contended her situation is similar to that of persons granted refugee/asylum status in accordance with the judgment of Cook J. of February 2011, in D.(a minor) v. Refugee Applications Commissioner & Ors when he ruled that the declaration of a...