The appellants were Afghan nationals who arrived in Ireland in 2008. They lived in direct provision and had four children, three of whom were born in Ireland. The entire family applied for asylum in 2013. In December 2014, the Refugee Appeals Tribunal issued a decision declaring their youngest son to be a refugee and this was communicated to the family by letter dated 8 January 2015. Upon receipt of this decision, the entire family applied for family re-unification and permission to remain in the State was granted in September 2015. The parents applied for child benefit in respect of all four children in February 2015 and were refused as they were deemed not to be habitually resident. They renewed this application in September 2015 and were successful following the grant of family reunification. The parents instituted proceedings arguing that child benefit was payable in respect of all children from the date of their application for refugee status in 2013 or, alternatively, in respect of their youngest son from the date of his recognition as a refugee in January 2015. The Court of Appeal found in favour of the parents ( IECA 155).
The Minister for Social Protection was granted permission to bring a further appeal to the Supreme Court ( IESCDET 204). The Supreme Court overturned the decision of the Court of Appeal and held that appellants were not entitled to child benefit from the date of the recognition of their youngest son as a refugee. The Supreme Court noted that child benefit is payable to a qualified person who normally resides with a qualified child where the qualified person is habitually resident in the State. A qualified person is not habitually resident in the State if they are not an Irish citizen, or a person who has been granted refugee status/subsidiary protection, or alternatively is not a person who has been given a permission to reside in the State. It was also noted that child benefit is payable by the State to help parents or those in loco parentis defray the costs associated with bringing up a child, but that it is not a payment made to a child or one which a child is entitled to receive. The criterion which must be fulfilled is that of habitual residence of the person to whom the child benefit is payable. The Supreme Court held that there is no difference of treatment between a qualified person who is a citizen, a person who has been declared to be a refugee or a person who has been granted permission to reside in the State or a person who is an EU citizen and is entitled to reside in the State by virtue of the right to free movement of EU citizens within the Member States. The State was entitled to have in place measures designed to prevent unlimited migration, and must be entitled to regulate the manner in which it provides for those in the State whose status has not yet been determined. Once a person is granted a permission to reside in the State or a grant of refugee status they are thereafter entitled to payment of child benefit as happened in this case. Therefore there was no basis upon which it could be said that there was any lack of equal treatment such as to give rise to a breach of Art.40.1 of the Constitution. Accordingly, the Minister’s appeal was allowed.
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