The High Court has rejected two families’ claims for child benefit for periods before the mothers had permission to reside in Ireland, refusing all relief sought in the judicial review actions.
In a judgment delivered on 17 January 2017, Mr Justice White considered the cases together because they raised similar questions about habitual residence and whether child benefit could be backdated. The first action concerned an Afghan family whose youngest child, Daniel Agha, was recognised as a refugee. The second concerned Nigerian national Faith Osagie and her Irish-citizen daughter, Victoria Osinuga.
The court held that child benefit is paid to a qualified person for a child’s benefit; it is not an automatic right of the child. A qualified person must meet the statutory habitual residence condition. The judge said asylum seekers’ permission to remain while their claims are being decided does not itself give them a right of residence for this purpose, and that rights arising after refugee recognition or family reunification are not backdated.
In the first action, Daniel was recognised as a refugee on 8 January 2015. His parents and siblings received family reunification permission on 11 September 2015. The judge said the mother did not become habitually resident for the claim until that permission was granted. Although this left Daniel without child benefit for the intervening period, the court noted that he had access to direct provision and that no culpable delay was alleged. It rejected the arguments that the relevant statutory provisions were unconstitutional or breached the cited refugee and EU law protections.
In the second action, Osagie’s application for permission to remain based on her daughter’s Irish citizenship was granted in January 2016. She had received child benefit since then and sought payment back to Victoria’s birth on 23 December 2014. The judge found that Osagie was not a qualified person before her status was regularised. During that period, mother and daughter had access to direct provision, and no culpable delay was alleged. The court rejected the claim that EU-derived residence rights required child benefit to be paid retrospectively, as well as the constitutional, EU law and human rights arguments.
The court’s decision resolved the applications for judicial review. It refused the relief sought under the leave orders of 29 June and 7 December 2015; it did not order retrospective payments.