Supporting Documents:
146-18 AFL.doc146-18 Resp Notice.doc

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.

REASONS GIVEN:

General Considerations

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. This application arises from the judgment of the Court of Appeal in Agha (a minor) v Minister for Social Protection [2018] IECA 155. The determination should be read in conjunction with that in Osinuga v Minister for Social Protection [2018] IESCDET . The issue, again, is whether there was an entitlement to child benefit at a time before the qualifying parent had permission to remain in the State.



4. The child in this case, Daniel Agha, was born in the State in 2013. His parents are Afghan nationals. He was declared to be a refugee by the Refugee Appeals Tribunal on the 9^th December 2014. At that point his parents and three older siblings, who had also made asylum applications, applied instead for family reunification. Pending a decision in that regard, his mother applied for child benefit for all of the children on the 19^th February 2015. This was refused on the basis that she was awaiting a decision from the Minister for Justice and Equality, and was not therefore habitually resident in the State within the terms of s.246 of the Social Welfare Consolidation Act 2005, as amended. All members of the family received permission to remain on the 11^th September 2015, and child benefit was paid thereafter.



5. The essence of the claim is that a declaration of refugee status is a recognition of an existing status.

6. Giving judgment in respect of this and the Osinuga appeal, Hogan J. distinguished the two cases in terms of Irish domestic law on the basis that Victoria Osinuga was a citizen and always had an unqualified right to reside. Daniel did not, until January 2015, and the State could not generally be expected to make social welfare payments to persons with no right to reside. Victoria’s status as a citizen meant that her exclusion from the benefit required a compelling justification, whereas Daniel’s right to reside (and that of his parents and siblings) after January 2015 depended exclusively on statute.



7. The respondents had relied upon the references in the EU Charter of Fundamental Rights to the UN Convention on Refugees of 1951 and its stipulation that refugees should receive equal treatment with nationals in respect of public relief and assistance. The Court of Appeal did not accept that the Convention, as such, had become part of EU law.



8. However, the Court interpreted Article 28 of Council Directive 2004/83/EC ('the Qualification Directive') as requiring that social assistance payments be made to those granted international protection status from the date on which such status was granted. The provisions of s.246, insofar as they precluded this, had to be regarded as inapplicable. Child benefit was therefore payable in respect of Daniel from January 2015, although only from September 2015 in respect of the other children of the family.

9. As in Osinuga the State applicants take issue with the characterisation of child benefit as an entitlement of the child. They also dispute the interpretation of Article 28 of the Qualification Directive insofar as the Court of Appeal applied it to a “qualifying parent” who did not have a right to reside.



10. Again, the respondents oppose the application for leave but wish, in the event that leave is granted, to argue the issue in relation to the compatibility of s.246 with the European Convention on Human Rights raised in the High Court.

11. The Court is satisfied that the case raises an issue of general public importance and accordingly grants leave on the grounds set out in the notice. The respondent will be entitled to make submissions on the point identified.

And it is hereby so ordered accordingly.