The High Court found that a two-year delay in deciding a woman’s subsidiary protection application breached the constitutional and European Union law rights of her and her minor son. It refused the applicants’ challenge to the refusal to backdate child benefit, while granting a declaration about the delay and reserving compensation for a further hearing.
The judgment, delivered by Mr Justice White on 3 February 2017, concerned a child born in Ireland on 31 December 2007 and his mother, who was granted subsidiary protection on 1 May 2012. The family’s identities are anonymised in the judgment. The mother had sought child benefit from the child’s birth or, alternatively, from an earlier application. The benefit was awarded from 1 May 2012, and an appeals officer rejected her appeal against that start date on 27 February 2014.
The judicial review was limited to that 2014 appeals decision. The court said the applicants could not use these proceedings to review earlier child-benefit refusals, though they could argue that the 2014 decision should have backdated payment.
The applicants argued, among other points, that the benefit should be backdated and that the statutory rules on habitual residence and the start date for subsidiary protection benefits were unlawful. The court rejected those arguments, applying its recent decisions in *Agha* and *Osinuga*. It held that granting subsidiary protection did not require the State to backdate child benefit and that the relevant legislation was constitutional and did not breach the EU Directive or Charter. The appeals officer had discretion to decide the appeal without an oral hearing.
The court accepted that the effective date of the mother’s subsidiary protection application was 25 January 2010, given the complicated history of her earlier refugee-status proceedings. It found the service could have decided the protection application after receiving substantive information on 17 April 2010, but did not grant protection until 1 May 2012, without offering an explanation for that delay. The court said the application should have been finalised by at least 1 May 2011.
The judge declared that the delay from 1 May 2011 to 1 May 2012 was inordinate and breached the applicants’ rights and the duties of the second, third and fourth respondents under European law and the Constitution. He refused the other reliefs, declined to refer a question to the Court of Justice of the European Union, and said the second applicant was entitled to compensation. The amount, if any, was left for the parties to address at a further hearing.