Social Welfare Payments to Children Seeking Refugee Status
Judge Hogan recently clarified the law on social welfare payments to children who sought refugee status and held that Irish citizen child and recognised refugee entitled to Social welfare in the case of Agha, Daniel (a minor) and ors v Minister for Social Protection and ors, and Irish Human Rights and Equality Commission (notice party); Victoria Osinuga (a minor) v Minister for Social Protection and ors 5/6/2018 No. 2017/79 & 2017/76  IECA 155
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 judgement 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 is 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  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 judgement and would also hear counsel as to the form of the order. Appeal allowed.