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Ireland - Agha (a minor) & Ors v. Minister for Social Protection & Ors, 17 January 2017
International Law > 1951 Refugee Convention
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Recital 14
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 8
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Recital 33
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Recital 34
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 20
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 23
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 18
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 28
European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006)
European Union (Subsidiary Protection) Regulation 2013 (S.I. No. 426 of 2013)
European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656 of 2006)
European Communities (Aliens) Regulations 1977 ( S.I. No. 393 of 1977
European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1997 (S.I. No. 57 of 1997)
Article 20 Treaty on the Functioning of the European Union
European Convention of Human Rights Act
2003 (Mainly s.5)
Ireland - The Social Welfare Consolidation Act
2005 (Mainly ss.220(3)
246(7) and 246(8) )
Ireland - The Refugee Act 1996 (Mainly ss. 3(2)(ii)
s. 9 and s.18(3) )
Ireland- Immigration Act 2004 (Mainly Section 4 &5)
Ireland - Immigration Act 1999 (Mainly ss. 3 (3) )
Ireland - Irish Nationality and Citizenship Act 1956 (Mainly s. 6A (1)
Analysing the legality of the refusal to grant child benefit payments to parents who are not habitually resident within the State for the benefit of their children.
As the legal issues pertinent in each case are broadly similar in nature, the two cases were brought as a joint action.
The first action related to citizens of Afghanistan, who entered the State in May 2008. They comprised of a family unit. Following an erroneous finding that several of the family members were in fact Pakistani and later issuing a deportation order for said family members, their Afghan citizenship was subsequently proven, and in light of this the youngest child, , applied for and received refugee status. The other members of the family unit subsequently applied for and were granted family reunification pursuant to s. 18 of the Refugee Act 1996.
The legal issue that forms the basis of the proceedings is the negative decision issued by the State to provide child benefits to the mother for the children of the family unit. . According to the State an entitlement to child benefits depends on being habitually resident within the State. This requirement was not met by the mother by virtue of the fact that she was awaiting a decision regarding her residency application at the time of applying.
As to the second action, the applicant was a Nigerian national whose application for refugee status in Ireland was rejected. She later appealed the decision and is since awaiting an oral hearing. The applicant later had a child in Ireland who is an
Irish citizen and bears an Irish passport. Having received a letter dated 15th January 2015 from the Child Benefit Section, the second named applicant made a claim for child benefit on 16th October 2015. A negative decision in respect of this matter was issued on 2nd November 2015 as the first named applicant was not deemed to have a right to reside for the purposes of s. 246 of the Social Welfare Consolidation Act 2005. By virtue of her parentage of the child the mother was granted leave to remain in the State in January 2016 and she has been in receipt of child benefit payments since that date.
The legal issue at present is the mother’s submission that child benefit should have been retrospectively paid from the date of birth of the first applicant on 23rd December 2014, up to the date in January 2016, when the second applicant was granted leave to remain.
The Court focused much of its deliberations on the issues of the nature of child benefit, refugee status and its consequences for child benefit applications, the habitual residence requirement and the jurisprudence of the European Union.
The applicants submission that the right to child benefit is a right for the child in question rather than the parent receiving it was unsuccessful, with the Court taking the view that although it is paid for the benefit of a child, it is paid to a qualified person for the benefit of the child and is not absolute or automatic in nature. An emphasis was placed on the requirement that the payments be made to eligible persons.
On the issue of the determination of refugee status, the Court was adamant that if an asylum seeker is granted permission to enter the State pursuant to s.9 of the Refugee Act 1996, and
refugee status is subsequently granted, the new legal rights to be afforded to the successful applicant are not to be backdated to the date upon which they were first granted entry to enter the State. In reaching its decision on this particular issue, the Court had due regard to the judgment delivered in BK (A Minor) vs. Minister for Justice  IEHC where at para 10. Feeney J stated that “The provisions of the Act are such that a person who is found to be a refugee does not have the benefits of refugee status backdated under the Act”, and it follows from this that any interpretation of s.9 of the Refugee Act 1996 that claimed otherwise would be contrary to the other provisions of the Act. Consideration was also had for the relevant provisions of the Geneva Convention, where a distinction was drawn between the use of ‘Refugees’ (Article 33) and ‘Refugees lawfully staying in their territory’ (Article 23). The latter are those who are lawfully present within the State, and therefore afforded a broader spectrum of rights.
The Court went onto rule that the status of the second applicant is unique in that her right to reside in the State was granted by virtue of her daughter being born in the State and her daughter’s status as a EU citizen – such rights being referred to as Zambrano rights from the case Zambrano v. Office National de l’Emploi(ONEm) C- 34/09. It was submitted by the applicants that Zambrano rights are declaratory of a pre-existing right. The Court did not provide a detailed commentary on this aspect of the submissions but did state unequivocally that Zambrano rights would not serve to act as means of obtaining child benefit payments or to have such payments backdated.
In determining whether the requirement of habitual residence was discriminatory in nature, the court considered the findings in Genov & Anor v. Minister for Social Protection & Ors  IEHC 340, in which Hedigan J stated that such a requirement was objectively justified on the basis that the State has limited resources for funding its social welfare system. Such a measure was therefore deemed to be proportionate to the desired aim. It was also pointed out that the measure was applied uniformly to all citizens and was not limited to application for child benefit, but was in fact a requirement for all Social Welfare payments. Applying the principles of that case to the one at present, the Court unequivocally stated that the presence of an asylum seeker pursuant to s. 9 of the Refugee Act 1996, does not confer a right of residence or habitual residence on the applicant. It was held that s. 246(8) of the Social Welfare Consolidation Act 2005 was not unconstitutional as it complied with the States obligations under the Geneva Convention and Council Directive 2004/83/EC.
On the issue of the alleged breach of the European Convention of Human Rights, it was held that while contracting States have minimum obligations to meet, they also enjoy a certain degree
of latitude in interfering with such rights provided it is done so in a manner prescribed by law. Citing the decision of Stec v. United Kingdom  ECHR 162 it was held that contracting States enjoy a wider margin of appreciation regarding measures of “economic or social strategy” by virtue of the fact that national authorities are better placed to make such decisions. The applicants had access to direct provision at the relevant time and there was no culpable delay in their application, and as such there was no finding that there Convention rights had been breached.
Ireland - BK (A Minor) vs. Minister for Justice  IEHC
ECtHR - Stec and Others v. the United Kingdom (nos. 65731/01 and 65900/01)
CJEU - C-34/09 Ruiz Zambrano  ECR I-0000
Ireland - Genov & Anor v. Minister for Social Protection & Ors  IEHC 340
Ireland - Gonescu & Ors v. Minister for Justice & Ors  IESC 49
Ireland - Simion (S.G) v. Minister for Justice, Equality and Law Reform  IEHC 298
Ireland - Muresan v. Minister for Justice, Equality and Law Reform  IEHC 348
Ireland - Sofroni & Ors v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 9th July 2004)
UK - Hannah Blakesley v. Secretary of State for Work and Pensions  EWCA Civ. 141