The European Court of Human Rights has ruled that Ireland did not violate the European Convention on Human Rights over its refusal to pay child benefit to women who were awaiting a decision on their immigration status.
The ECHR ruled that the State had not discriminated against the two women, known as X and Y, who had applied for child benefit for their lawfully resident children in Ireland at a time when a decision was still awaited on their own status to be allowed to stay in Ireland.
The Strasbourg-based court found that the immigration status of the two applicants had not been similar enough to parents who already had legal residency in Ireland.
As a consequence, the ECHR in a unanimous decision of the seven-judge court – which included an Irish judge, Ms Justice Síofra O’Leary – said they had not been discriminated against.
The two women were subsequently granted child benefit for their children after a decision to allow them to remain in Ireland was confirmed.
The ECHR stated it was acceptable to have a residency requirement in defining who was entitled to claim child benefit as social welfare systems operated primarily at national level.
The applicant, X, who is a Nigerian national and who arrived in Ireland in 2013, had applied for asylum a year later but had her application rejected in 2015.
Her daughter, known as E, who was born in 2014, is an Irish citizen by virtue that her father is an Irish citizen.
X subsequently applied to the Minister for Justice for the right to reside in Ireland on the grounds that she was the mother of an Irish citizen.
While the application was pending, she also applied for child benefit for E.
X subsequently brought High Court proceedings after she was refused child benefit.
She was granted the right to reside in Ireland in January 2016 and claimed child benefit thereafter.
Her case before the ECHR solely related to the period of around 12 months between the initial refusal of child benefit and the minister’s decision to grant her a right to stay in the Republic.
In the second case, Y was a native of Afghanistan who arrived in Ireland in May 2008 with her husband and first child.
Y subsequently gave birth to three children in Ireland with the youngest known as M, born in 2013.
The Refugee Appeals Tribunal granted M asylum in December 2014 and his family subsequently applied for reunification the following month under the Refugee Act 1996.
Y then applied for and was refused child benefit for the four children while a decision on their residency status was pending.
Her legal challenge related to an eight-month period where she was refused child benefit.
In January 2017, the High Court ruled that the residency status of the parent or guardian was the key determinant for eligibility for child benefit.
It also observed that the residency requirement was neither unfair nor discriminatory.
The following year, the Court of Appeal differed in its ruling and claimed the residency status of the qualified child determined eligibility.
It thus ruled that X was entitled to receive child benefit from E’s birth since E was an Irish resident from birth but that Y could only claim the benefit from the time her son, M, was granted asylum.
Following another appeal in the case, the Supreme Court ruled that the approach of the Court of Appeal had been incorrect and that the relevant legislation related to the qualified parent or guardian rather than the qualified child.
The Supreme Court also found that the State was not obliged to make child benefit payments until X and Y had been given permission to remain in Ireland.
