The Court of Appeal allowed two appeals in part over child benefit withheld because the parents claiming it did not yet have the required immigration status. It held that the exclusion of an Irish citizen child resident in Ireland breached constitutional equality protections, and that EU law required payment for a child from the date he was recognised as a refugee. The court said it would hear counsel on the form of the order.
In the Osinuga appeal, Victoria Osinuga was an Irish citizen born in Ireland. Her mother, Faith Osagie, had applied for asylum and later sought recognition of a right to reside based on her parentage of an Irish citizen child. The Department of Social Protection refused child benefit applications in October and November 2015 because Osagie did not then have a right to reside. After her right to reside was recognised on 6 January 2016, the Department granted benefit from that date.
The court held that section 246 of the Social Welfare Consolidation Act 2005 was unconstitutional insofar as it barred child benefit for an Irish citizen child resident in the State solely because the qualifying parent lacked an unconditional right to reside. It directed that the declaration be suspended for other cases until 1 February 2019, giving the Oireachtas time to respond. The suspension did not apply to the backdated payment due in Victoria’s case.
The second appeal concerned the Agha family. Daniel Agha was recognised as a refugee in January 2015; his parents received permission to remain through family reunification in September 2015. The Department had granted child benefit for the four children from the family reunification date. The court rejected the argument that benefit was due for the children from the family’s asylum applications in 2013. It held that the other three children had no entitlement before the September 2015 family reunification decision.
However, under Article 28 of the EU Qualification Directive, the court held that benefit was due for Daniel from the date he was recognised as a refugee, even though his mother did not yet have immigration status. The relevant provisions of section 246 had to be disapplied to that extent. The court said this EU law finding could not be suspended. It held that the statutory residence requirement was not unconstitutional in the Agha case because Daniel was not an Irish citizen.