Supporting Documents:
145-18 AFL.docx145-18 Respondants Notice.pdf

THE SUPREME COURT
DETERMINATION

RESULT: The Court grants leave to the Applicants to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 5th June, 2018

DATE OF ORDER: 20th June, 2018

DATE OF PERFECTION OF ORDER: 29th August, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 26th September, 2018 AND WAS IN TIME.

1. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33^rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

2. The application for leave filed, and the respondents’ notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.

Background

3. Child benefit is a universal, non-means tested payment paid in respect of every “qualified” child in the State. A parent claiming the payment must be a “qualified” parent. For present purposes, the relevant conditions for qualification, set out in s.246 of the Social Welfare Consolidation Act 2005, as amended, are that both child and parent must be habitually resident in the State. A person will not be considered to be habitually resident unless he or she has a right of residence, and, expressly, does not have such a right if he or she is awaiting a decision on an application for permission to reside.



4. Victoria Osinuga was born in Ireland on the 23^rd December 2014. Her mother, Faith Osagie, was at that time an asylum seeker. Her father was an Irish citizen and Victoria has therefore been a citizen since birth. After her birth her mother sought permission to remain in the State as the parent of an Irish and EU citizen child. Pending this decision, she and her daughter lived in direct provision.



5. In January 2015 Faith Osagie was invited by the Child Benefit Section of the Department of Social Protection to apply for child benefit. She did so on the 16^th October 2015. The application was refused on the basis that, as she was awaiting a decision from the Minister for Justice and Equality on her application for permission to remain, she did not have a right to reside as required by the Act.



6. These judicial review proceedings were instituted on the 7^th December 2015. Faith Osagie was given permission to remain on the 6^th January 2016, and received child benefit thereafter. In the proceedings, she claimed an entitlement to payment from the date of Victoria’s birth up to January 2016, and therefore sought an order of certiorari of the refusal as well as declaratory relief. She contended that the provisions of s.246 of the Act were unconstitutional, contrary to EU law and incompatible with the European Convention on Human Rights.

7. The sole judgment in the Court of Appeal, which also deals with the case of Agha v. Minister for Social Protection, is that of Hogan J. – see [2018] IECA 155. He formulated the issue in this case as being whether the Oireachtas could deprive a citizen of entitlement to child benefit by reason of the immigration status of the adult claimant. The exclusion of a citizen from a universal payment, available in principle to citizen and non-citizen residents, called for a high level of justification having regard to Article 40.1 of the Constitution, and he concluded that it had not been demonstrated.



8. The fact that the State was providing for mother and child in direct provision did not provide justification, since child benefit was payable without regard to means and amounted to an acknowledgement by the State of its interest in making an important contribution to the welfare of all children resident in the jurisdiction.



9. The policy of deterring opportunistic asylum claims based on the perceived generosity of the State’s welfare system was not sufficient justification, since the deterrence was aimed at adult conduct but at the expense of a payment designed for the benefit of the child. This pointed to the inherent unfairness and lack of proportionality in the scheme of exclusion.



10. Hogan J. compared the legislation with German measures of a similar nature, that provided that child benefit was not payable to non-nationals without long-term residence permits. This had been found to be contrary to both the German Constitution and the European Convention on Human Rights – see Niedzwiecki v Germany (2006) 42 EHRR 33. Hogan J. considered that the instant case was governed by the principles set out therein. The Court granted an order of certiorari. It made a declaration in the following terms:


“insofar as section 246(6) and (7) of the Social Welfare Consolidation Act 2005 prevents the payment of Child Benefit in respect of an Irish citizen child resident in the State solely by reason of the immigration status of the parent claiming such Benefit said provisions are incompatible with the provisions of the Constitution.”

11. The effect of the order was suspended until February 2019, to allow the Oireachtas and the Minister for Finance to consider the implications.

12. The notices filed by the parties are available on this website and will not be summarised here in any detail. It is however important to note that the applicant State parties contend that the decision of the Court of Appeal has characterised child benefit as a benefit to which a child is entitled, notwithstanding the fact that it is paid to an adult. This characterisation affects the context of the discussion of Article 40.1 and the question whether like persons were being treated alike. This will potentially affect other (unspecified) welfare payments. They also see the effect of the declaration, despite its apparently limited wording, as being to strike down the entirety of the two subsections with consequences for other, unrelated welfare payments that depend on the concept of habitual residence. They say that the habitual residence condition has been recognised as an acceptable feature of social welfare systems in both domestic and EU jurisprudence. Finally, they dispute the finding that there was no objective justification for the measure, and what they see as the failure to have sufficient regard to the supports provided through direct provision.



13. The respondents say that the decision is not of general public importance and will in fact affect less than a dozen persons who have instituted litigation. They dispute much of the applicants’ interpretation of the judgment and contend that the Court of Appeal applied well-established principles. They wish, in the event that leave is granted and the Court ultimately overturns the finding of unconstitutionality, to support the substantive decision of the Court of Appeal on additional grounds (argued in the High Court) based on EU and ECHR law. The arguments here would be that the mother had an entitlement, on Zambrano principles ((Case C-34/09) [2011] ECR I-01177), to reside as and from the date of the child’s birth and therefore had an entitlement to payment from that date; and that the impugned provisions amounted to an unjustified discrimination and interference with the private life of the respondents.

14. The Court accepts that the characterisation of child benefit as a payment to a child rather than to the parent, with the consequence that the issue in the case was seen as discrimination as between citizen children, has important potential consequences beyond this individual case. The Court further considers that this issue cannot be treated in isolation from the other issues debated in the case. It will accordingly grant leave to appeal on the grounds set out in the notice. The respondents will be entitled to argue the additional grounds identified in their notice.

And it is hereby so ordered accordingly.