O v Minister for Social Protection and A v Minister for Social Protection

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne,O'Donnell J.
• Judgment Date: 21 November 2019
• Neutral Citation: [2019] IESC 82
• Docket Number: Record No. 2018/146
• Date: 21 November 2019
• Court: Supreme Court

IN THE MATTER OF THE CONSTITUTION OF IRELAND

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

BETWEEN

MICHAEL (A MINOR), SARAH (A MINOR), AZMI (A MINOR), AFSAR (A MINOR), (ALL SUING THROUGH THEIR MOTHER AND NEXT FRIEND MS. X), MS. Z.

AND

MS. X

APPLICANTS/RESPONDENTS

AND

MINISTER FOR SOCIAL PROTECTION, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS/APPELLANTS

BETWEEN

EMMA

(A MINOR SUING BY HER MOTHER AND NEXT FRIEND MS. Y)

AND

MS. Y

APPLICANTS/RESPONDENTS

[2019] IESC 82

Clarke C. J.

O'Donnell J.

Dunne J.

Charleton J.

O'Malley J.

Record No. 2018/146

Record No. 2018/145

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Child benefit – Immigration status – Citizenship – Appellants seeking to appeal from the decision of the Court of Appeal allowing the appeal by the respondents from the decision of the High Court – When does a payment of child benefit arise to parents whose immigration status has not yet been determined finally by the State but a child of the relevant family had either status as an Irish citizen or as a refugee?

Facts: The respondents/appellants, the Minister for Social Protection, the Attorney General and Ireland, appealed to the Supreme Court from the decision of the Court of Appeal (Peart, Irvine and Hogan JJ) delivered on the 5th June, 2018 in a judgment of Hogan J which allowed the appeal by the applicants/respondents in each case from the decision of the High Court (White J) on the 17th January, 2017. Both cases concerned the question of when a payment of child benefit arises to parents whose immigration status has not yet been determined finally by the State but a child of the relevant family had either status as an Irish citizen or as a refugee.

Held by Dunne J that the Court of Appeal fell into error in concluding that Emma as an Irish citizen resident in the state had a strong claim to be treated in the same way as fellow citizens similarly resident in the State; in fact, the Court of Appeal should have considered the position of her mother, the qualified person, to whom child benefit would be payable provided that her mother, Ms Y, met the eligibility requirements of the Social Welfare Consolidation Act 2005. Dunne J held that child benefit is payable to a qualified person and the qualified person has to be habitually resident in the state; Ms Y, having regard to the fact that she did not have refugee status or permission to reside in the State, did not have habitual residence in the State. Dunne J held that there was no difference in treatment between Ms Y and any other qualified person in terms of the requirement of habitual residence. Dunne J held that it was also clear that by focusing on the position of Michael rather than on the position of his mother, the Court of Appeal fell into error. Dunne J held that there was nothing in Article 28 of Directive 2004/83/EC (the Qualification Directive) to suggest that the payment of child benefit should be backdated to the date upon which Michael was granted refugee status; the payment is made from the date upon which the decision was made to grant his mother, the qualified person entitled to receive the payment, the right to reside in the State. Dunne J held that the State was not obliged to make a payment of child benefit to Ms X in respect of Michael until such time as she was given permission to reside in the State and Article 28 does not mandate any payment before that date.

Dunne J held that she would allow the appeals of the State.

Appeal allowed.

Judgment of O'Donnell J. delivered the 21st day of November 2019.

1 I agree with the judgment to be delivered by Dunne J. I wish, however, to make some observations on the application of Article 40.1 of the Constitution because, although the decision today restores the outcome arrived at by an experienced High Court judge, we are differing somewhat from that judgment on the legal analysis, and because we are reversing a thoughtful judgment of the Court of Appeal which relies in part on a passage in a judgment I delivered in Murphy v. Ireland [2014] IESC 19 (“ Murphy”). I adopt the statement of facts set out in the judgment of Dunne J. and agree with her analysis of the European Convention on Human Rights and the European Union, and have nothing to add in that regard. However, the case raises difficult issues of the application of the equality guarantee of the Irish Constitution, and for that reason may merit further consideration.

2 While the O and A cases have important distinctions on their facts, it is nevertheless useful to consider them together. For the purposes of this judgment, I propose to adopt the approach taken in the judgment of Dunne J. and refer to each principal plaintiff by an anonymised name, without intending any discourtesy.

3 In Emma's case, her mother, who is from Nigeria, entered the State in 2013 and applied for asylum in November 2014. She formed a relationship with a man who was a naturalised Irish citizen. Emma was born in December 2014, and accordingly is an Irish citizen from birth, with an unqualified entitlement to reside in Ireland. The relationship between her parents broke down, and Emma is now in the sole custody of her mother. Shortly after Emma's birth, her mother received a letter from the Child Benefit Section of the Department of Social Protection, inviting her to apply for child benefit in respect of Emma, which she did later that year, in October 2015. This application was refused in November 2015, on the grounds that the applicant, Emma's mother, did not have a right to reside in the State and could not accordingly be considered a qualifying parent under s. 246 of the Social Welfare Consolidation Act 2005 (as amended) (“the 2005 Act”). In January 2016, the Minister for Justice and Equality recognised Emma's mother's right to reside here on the basis of Zambrano rights, and the Minister for Social Protection granted her an entitlement to child benefit as and from that date (January 2016). This case therefore concerns Emma's mother's claim for child benefit in respect of Emma for the period from the first application in October 2015 until benefit was granted as and from January 2016.

4 In the A case, Michael's parents were two Afghan nationals who arrived in the State in 2008, and resided in the direct provision system. They have four children, one of whom was born in Pakistan and three in Ireland. Having originally presented as citizens of Pakistan, their Afghan citizenship was eventually established and, as the Court of Appeal judgment put it, somewhat belatedly an application was made for asylum in 2013. In January 2015, the youngest son, Michael, was declared a refugee, and it followed that the remaining members of the family were entitled to family reunification and, accordingly, permission to remain was granted in September 2015. An application had been made by Michael's mother for child benefit in respect of all four children in February 2015 (at which point Michael had been declared a refugee and the remaining members of his family were awaiting a decision on their application for family reunification). That application was refused in April 2015, again in reliance on s. 246 of the 2005 Act on the basis that the applicant, Michael's mother, had no right of residence and accordingly was not habitually resident in the State at that point. Once again, once family reunification was granted, a further application was made and granted with effect from the date of the family reunification decision in September 2015. These proceedings, accordingly, concern the period between the first unsuccessful application in February 2015, and the date of the family reunification decision of September 2015, from which date benefit has been payable. It is apparent that, while the periods involved are short and the amounts relatively small, these are test cases, and raise an issue which arises in many cases.

5 The approach of the Department of Social Protection was consistent in both cases. Benefit was refused when the applicant for the benefit, in each case the parent, did not have a right to reside in the State, but was granted once the applicant had such a legal right to reside and a valid application was made. In each case, for reasons I will shortly set out at more length, this approach was in clear compliance with the statutory provisions. The issue in this case, accordingly, is the validity of those statutory provisions which was challenged by reference to the European Convention on Human Rights, the law of the European Union, and in particular, and successfully in the Court of Appeal, on the basis of the constitutional guarantee of equality under Article 40.1.

6 In the High Court, White J., while expressing concern about the absolute nature of s. 246(8) and considering that the restriction was not ideal, nevertheless concluded that it was not constitutionally infirm, as in each case the applicant had the right to reside in direct provision and have their needs met by the direct provision system. Habitual residency was a condition applied equally to Irish citizens and non-Irish citizens, and the equality guarantee of the Constitution did not require identical treatment for all persons without recognition of differences of circumstances.

7 In the Court of Appeal Hogan J. (Peart and Irvine JJ. concurring), reversed the decision in respect of Emma who was, of course, an Irish citizen from birth, but upheld this aspect of the decision in respect of Michael, who, although born in Ireland, did not have an automatic right to Irish citizenship. As Hogan J. put it pithily at para. 47 of his judgment:- “[t]he difference, therefore, between the decision of Emma on the one hand, and Michael on the other so far as the constitutional issue is concerned can be summed up by one word, namely, citizenship”. He considered that the provisions of s. 246 effected an unjustifiable discrimination...