The Supreme Court restored the High Court outcome in two challenges to rules that prevented child benefit claims before a parent obtained a qualifying right to reside in Ireland. In a judgment dated 21 November 2019, O’Donnell J. agreed with a judgment to be delivered by Dunne J. and set out his separate analysis of the constitutional equality issue.
The cases concerned claims for periods before the mothers’ immigration permissions took effect. Emma, an Irish citizen born in December 2014, was in the sole custody of her mother, who had arrived from Nigeria and applied for asylum. The Department refused the mother’s October 2015 child benefit application because she had no right to reside. After her right to reside was recognised on Zambrano grounds in January 2016, benefit was granted from that date. The dispute concerned the earlier period.
In the second case, the mother of four children, including Michael, applied for child benefit in February 2015. Michael had been declared a refugee the previous month; his family later received permission to remain through family reunification in September 2015. The application was refused in April 2015 because the mother had no right to reside. A later claim was granted from September, and the proceedings concerned the period before that decision.
The High Court had found the statutory scheme constitutional. The Court of Appeal reversed that result for Emma, reasoning that withholding benefit in respect of an Irish citizen child solely because of the parent’s immigration status was unconstitutional. It upheld the result for Michael. The Supreme Court extract says the Court of Appeal’s declaration for Emma had been suspended and extended pending the Supreme Court case.
O’Donnell J. said child benefit is paid to a qualifying adult in respect of a child; it is not legally the child’s own payment. He described the statutory distinctions as turning on whether the claimant had a right to reside and was habitually resident, with permissions generally taking effect from the date granted rather than retrospectively. In his analysis, the challenge concerned an indirect effect on children of rules directly governing adult claimants. He considered the distinction rational and not an impermissible discrimination under Article 40.1. He also said the legislation distinguished among claimants by their particular immigration status, not by the citizenship of the claimant or child.
The extract records O’Donnell J.’s agreement with Dunne J. that the Court of Appeal’s result should be reversed, but ends during his discussion of direct provision. It does not reproduce Dunne J.’s judgment or the final operative orders, so the precise formal order and the full court’s reasoning cannot be established from this source alone.