Osinuga (A Minor) v Minister for Social Protection

 
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[2018] IESCDET 205

THE SUPREME COURT

DETERMINATION

O'Donnell J.

Charleton J.

O'Malley J.

A:AP:IE:2017:000076

IN THE MATTER OF THE CONSTITUTION OF IRELAND AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

BETWEEN
VICTORIA OSINUGA

(a minor suing by his mother and next friend Faith Osagie)

FAITH OSAGIE
APPLICANTS
AND
MINISTER FOR SOCIAL PROTECTION
IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Applicants to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal
DATE OF JUDGMENT OR RULING: 5 th June, 2018
DATE OF ORDER: 20 th June, 2018
DATE OF PERFECTION OF ORDER: 29 th August, 2018
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 26 th September, 2018 AND WAS IN TIME.

REASONS GIVEN:

General Considerations
1

The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33 rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called “leapfrog appeal” direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.2. The application for leave filed, and the respondents' notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.

Background
3

Child benefit is a universal, non-means tested payment paid in respect of every ‘qualified’ child in the State. A parent claiming the payment must be a ‘qualified’ parent. For present purposes, the relevant conditions for qualification, set out in s.246 of the Social Welfare Consolidation Act 2005, as amended, are that both child and parent must be habitually resident in the State. A person will not be considered to be habitually resident unless he or she has a right of residence, and, expressly, does not have such a right if he or she is awaiting a decision on an application for permission to reside.

4

Victoria Osinuga was born in Ireland on the 23 rd December 2014. Her mother, Faith Osagie, was at that time an asylum seeker. Her father was an Irish citizen and Victoria has therefore been a citizen since birth. After her birth her mother sought permission to remain in the State as the parent of an Irish and EU citizen child. Pending this decision, she and her daughter lived in direct provision.

5

In January 2015 Faith Osagie was invited by the Child Benefit Section of the Department of Social Protection to apply for child benefit. She did so on the 16 th October 2015. The application was refused on the basis that, as she was awaiting a decision from the Minister for Justice and Equality on her application for permission to remain, she did not have a right to reside as required by the Act.

6

These judicial review proceedings were instituted on the 7 th December 2015. Faith Osagie was given permission to remain on the 6 th January 2016, and received child benefit thereafter. In the proceedings,...

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