Ireland - DN (A minor suing by his mother and next friend, AS) AS v The Chief Appeals Officer and the Minister for Social Protection, 16 February 2017

Country of Decision:
Country of Applicant:
Date of Decision:
16-02-2017
Citation:
[2017] IEHC 52
Court Name:
High Court – judgment of Michael White J.
National / Other Legislative Provisions:
Ireland - Social Welfare Consolidation Act 2005
Ireland - Social Welfare & Pensions (No. 2) Act 2009
Ireland - Article 34 of the Irish Constitution
Ireland - European Communities (Eligibility for Protection) Regulations 2006 (S.I. no. 518 of 2006)
Ireland - European Union (Subsidiary Protection) Regulations 2013 (S.I. no. 426 of 2013)
Printer-friendly versionPrinter-friendly version
Headnote: 

This case concerned the back dating of child benefit for families who were previously in the asylum procedure. 

Facts: 

AS is the parent of DN, a child who was born in Ireland on 31 December 2007. In January 2006 AS sought asylum in Ireland which was refused in March 2007. She then applied for subsidiary protection under Ireland’s previous bifurcated asylum procedure in May 2007. At the same time the applicant sought judicial review on the basis of the Refugee Appeals Tribunal (RAT)’s decision. The judicial review proceedings were struck out in February 2009. In 2009 the second named applicant then sought re-entry to the refugee determination procedure but was refused in December 2009. She then made an application for subsidiary protection in January 2010 and was subsequently granted subsidiary protection in May 2012 from the Irish Naturalisation and Immigration Services (INIS).

During her time in the procedure AS made several applications for child benefit in respect of the first named applicant which were all refused. She was then awarded child benefit from the 1st May 2012 but she appealed that decision contending that she ought to have the child benefit claim awarded backdated to the birth of the child applicant.

The applicants sought an order of certiorari quashing the decision of the Chief Appeals Officer to refuse to backdate the applicants’ application for child benefit; they also sought a declaration that DN is entitled to support derived from child benefit from the date of his birth and AS is entitled to receive child benefit in respect of DN from that same date in light of the granting of subsidiary protection to her on foot of her application for asylum. The applicants also sought a declaration that sections 246(7)(b) and 246(8)(c) of the Social Welfare Consolidation Act 2005 as amended are in breach of EU law including the Charter of Fundamental Rights and are repugnant to the Constitution and incompatible with the European Convention on Human Rights. Alongside those reliefs the applicants sought a declaration and damages for the delay in granting subsidiary protection to AS which they believed was in breach of the applicant’s rights and of the duties of the Chief Appeals Officer, the Minister for Justice and Equality and the Minister for Social Protection.  

 

Decision & Reasoning: 

The Court accepted that subsidiary protection like refugee status is a declaratory act. With regards to the constitutionality of Section 246 of the Act the Court relied upon the recent decision of Agha & Anor v. Minister for Social Protection & Ors to hold that the granting of subsidiary protection does not oblige the State to backdate child benefit which the Court accepts is a core benefit (para. 17).

Judge White, in reference to the decision in Agha and Osinuga noted that the habitual residence requirement for child benefit was not discriminatory and that child benefit was not an automatic right of the child or the qualified adult. The applicant had been refused an oral hearing for her appeal on the child benefit decision but the Court notes that it was within the discretion of the appeals officer to refuse an oral hearing.

As to the delay in granting the second applicant subsidiary protection White J. stated the following “Administrative authorities should be conscious of the length of time applicants seeking asylum in the country spend in direct provision whether by way of seeking refugee status, subsidiary protection or other consent mechanisms. The direct provision system meets the basic needs of applicants but is far from ideal.” (Para. 22).

The Court noted the pull factor of immigration as an important policy concern by the then head of the Reception and Integration Agency but the judge also held that very lengthy periods in Direct Provision are undesirable. It was noted that though section 246(8) itself was constitutional, the delay in processing the applicant’s subsidiary protection application meant that the fifth respondent, the appeals officer, had no discretion to backdate the claim for subsidiary protection applicants. White J. held that “if an applicant for refugee status or subsidiary protection or other application to remain in Ireland is in direct provision for a very lengthy period of time it is incumbent on the Minister for Justice and Equality to ensure  that their applications are processed within a reasonable time.” It was noted that it took more than two years for the authorities to issue a decision on the applicant’s subsidiary protection claim. No explanation was proffered for the delay. The High Court, quoted with approval the opinion of Advocate General Bot in C-277/11 in M. v. Minister for Justice, Equality and Law Reform and Other stating therein ‘applications for subsidiary protection, like applications for asylum, must thus be the subject of a thorough examination, taking place within a reasonable period of time, as the prompt dispatch of the proceedings contributes  not only to the applicant’s legal certainty but also to his integration.’

The Court held that the delay combined with the effect of s. 246(8) breached the applicants constitutional and EU law rights. The Court declined any reference to the CEJU but stated that the second applicant was entitled to compensation and that he would hear the parties on that matter.

Outcome: 

The applicants received a declaration that the delay in granting subsidiary protection to the second named applicant was inordinate and in breach of the applicants’ rights and of the duties of the State and its agents under European Union law, the Constitution and section 3 of the European Convention on Human Rights Act 2003. 

Observations/Comments: 

Although this case concerned the backdating of child benefit it is also important in terms of considering the delay in the decision making process for subsidiary protection. FLAC, who took the case on behalf of the clients, welcomed the Court’s decision stating “We are delighted that the perseverance of the clients in this case, in pursuing their rights while in direct provision, has been vindicated. While it remains to be seen how the Court will determine the compensation to which the applicant is entitled, the principle established in this case is important for all those with no choice but to accept the direct provision system pending the determination of their international protection claims. While the law is changing in this area, this case gives a further impetus to ensure our administrative systems are sufficiently resourced to avoid the type of delay seen in this case.” 

Other sources cited: 

 

 

Case Law Cited: 

Ireland - Osinuga & Ors v. Minister for Social Protection & Ors 2017 IEHC 6

Ireland - V.N. v. Minister for Justice and Law Reform & Anor [2012] IEHC 62

Ireland - D(a minor) v Refugee Applications Commissioner & Ors