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Agha v Minister for Social Protection; Osinuga v Minister for Social Protection

Applicant/Plaintiff: Agha; Osinuga
Respondent/Defendant: Minister for Social Protection
Citation/s: [2018] IECA 155
Nature of Proceedings: Appeal
Court/s: Court of appeals
Judgment Date/s: 06 May 2018
Judge: Hogan G.
Category:Citizenship, Refugee
Keywords:Asylum; Child; Citizenship (Acquisition of); Discrimination (Indirect); Equal Treatment (Principle of); Immigration; Migrant (Irregular); Refugee; Refugee Law; Social welfare
Country of Origin: Afghanistan, Nigeria, Ireland
URL: http://courts.ie/Judgments.nsf/0/2C03B890018853BD802582A5003F981A
Geographical Focus:Other

xAgha v Minister for Social Protection; Osinuga v Minister for Social Protection
Agha; Osinuga
Minister for Social Protection 
Facts: The appellants were two sets of parents who were refused payment of child benefit due to their immigration status. In the Agha case, the parents 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 Agha 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. 
In the Osinuga case, the child’s mother was a Nigerian citizen who entered the state in 2013 and applied for asylum in November 2014. She entered into a relationship with a naturalised Irish citizen and her daughter was born in December 2014. Her daughter was an Irish citizen from birth. The child’s mother applied for the right to reside and work in the State in September 2015, which was granted in January 2016. She had applied for child benefit in October 2015 and was refused on the basis that she was not habitually resident and was therefore not a “qualifying parent” pursuant to s.246 of the Social Welfare Consolidation Act 2005 (as amended) (the “2005 Act”). Following the recognition of her right to reside in the State, child benefit was granted with effect from October 2015. 
In both cases, the High Court (White J.) held that the appellants had not suffered discrimination ([2017] IEHC 6).
Reasoning: 
Hogan J. delivered the judgment of the Court of Appeal, holding that insofar as s.246(6) and s.246(7) of the 2005 Act prevented 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, those provisions must be adjudged to be unconstitutional. It was nonetheless appropriate that, save insofar as it concerns the rather small payment of backdated child benefit due in the Osinuga case of, that declaration should remain otherwise suspended until the 1st February 2019.
In the Agha case, Hogan J held that the statutory requirement that the qualifying parent must also have a legal entitlement to reside in the State could not be regarded as unconstitutional. The key difference between the Agha case and the Osinuga appeal was that of citizenship. As the child in the Agha case was not an Irish citizen, his entitlement to reside in the State was contingent on a statutory entitlement to which the Oireachtas may attach conditions, one of which was that any parent who claimed that benefit must also have an entitlement to reside in the State.
Insofar as the claim was based on Article 23 of the Refugee Convention, Hogan J noted the Convention was not, as such, part of EU law. In relation to social security payments, Article 28 of the Qualification Directive provided that there was no right to such benefits prior to the grant of refugee or subsidiary protection status. Accordingly, with the exception of the youngest child, Ms Agha parents had no entitlement to claim such benefits in respect of the other three children prior to the family reunification decision in September 2015. However, because her youngest child was recognised as a refugee in January 2015, Ms Agha was held to be entitled to child benefit payment in respect of him as and from that date in accordance with Article 28 of the Qualification Directive. Insofar as s.246(6) and s.246(7) of the 2005 Act precluded this payment, Hogan J held that these provisions must be regarded as inapplicable as a matter of EU law and a national court such as the Court of Appeal had no jurisdiction to suspend that finding of inapplicability as this would otherwise compromise the uniformity and supremacy of EU law.
 
Decision: Appeal allowed
There was no objective justification for the statutory exclusion of an Irish citizen resident in the State from eligibility for child benefit prior to the grant of status to her mother in January 2016. Accordingly, this statutory exclusion constituted a breach of the equality provisions of Article 40.1 of the Constitution.
The statutory requirement that a qualifying parent for the purposes of social welfare payments must also have a legal entitlement to reside in the State was not unconstitutional. The key issue was that of citizenship. The Oireachtas was entitled to attach conditions to the eligibility for social welfare of a non-national whose entitlement to reside in the State was contingent on a statutory entitlement. However, social welfare was payable in respect of a person from the date of the grant of refugee status in accordance with Article 28 of the Qualification Directive and insofar as Irish law precluded this payment based on the status of the child’s parents, this was incompatible with EU law.
[2018] IECA 155

Facts:

The appellants were two sets of parents who were refused payment of child benefit due to their immigration status.

In the Agha case, the parents 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 Agha 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. 

In the Osinuga case, the child’s mother was a Nigerian citizen who entered the state in 2013 and applied for asylum in November 2014. She entered into a relationship with a naturalised Irish citizen and her daughter was born in December 2014. Her daughter was an Irish citizen from birth. The child’s mother applied for the right to reside and work in the State in September 2015, which was granted in January 2016. She had applied for child benefit in October 2015 and was refused on the basis that she was not habitually resident and was therefore not a “qualifying parent” pursuant to s.246 of the Social Welfare Consolidation Act 2005 (as amended) (the “2005 Act”). Following the recognition of her right to reside in the State, child benefit was granted with effect from October 2015. 

In both cases, the High Court (White J.) held that the appellants had not suffered discrimination ([2017] IEHC 6).

Reasoning: 

Hogan J. delivered the judgment of the Court of Appeal, holding that insofar as s.246(6) and s.246(7) of the 2005 Act prevented 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, those provisions must be adjudged to be unconstitutional. It was nonetheless appropriate that, save insofar as it concerns the rather small payment of backdated child benefit due in the Osinuga case of, that declaration should remain otherwise suspended until the 1st February 2019.

In the Agha case, Hogan J held that the statutory requirement that the qualifying parent must also have a legal entitlement to reside in the State could not be regarded as unconstitutional. The key difference between the Agha case and the Osinuga appeal was that of citizenship. As the child in the Agha case was not an Irish citizen, his entitlement to reside in the State was contingent on a statutory entitlement to which the Oireachtas may attach conditions, one of which was that any parent who claimed that benefit must also have an entitlement to reside in the State.

Insofar as the claim was based on Article 23 of the Refugee Convention, Hogan J noted the Convention was not, as such, part of EU law. In relation to social security payments, Article 28 of the Qualification Directive provided that there was no right to such benefits prior to the grant of refugee or subsidiary protection status. Accordingly, with the exception of the youngest child, Ms Agha parents had no entitlement to claim such benefits in respect of the other three children prior to the family reunification decision in September 2015. However, because her youngest child was recognised as a refugee in January 2015, Ms Agha was held to be entitled to child benefit payment in respect of him as and from that date in accordance with Article 28 of the Qualification Directive. Insofar as s.246(6) and s.246(7) of the 2005 Act precluded this payment, Hogan J held that these provisions must be regarded as inapplicable as a matter of EU law and a national court such as the Court of Appeal had no jurisdiction to suspend that finding of inapplicability as this would otherwise compromise the uniformity and supremacy of EU law. 

Decision: Appeal allowed.

Principles:

There was no objective justification for the statutory exclusion of an Irish citizen resident in the State from eligibility for child benefit prior to the grant of status to her mother in January 2016. Accordingly, this statutory exclusion constituted a breach of the equality provisions of Article 40.1 of the Constitution.

The statutory requirement that a qualifying parent for the purposes of social welfare payments must also have a legal entitlement to reside in the State was not unconstitutional. The key issue was that of citizenship. The Oireachtas was entitled to attach conditions to the eligibility for social welfare of a non-national whose entitlement to reside in the State was contingent on a statutory entitlement. However, social welfare was payable in respect of a person from the date of the grant of refugee status in accordance with Article 28 of the Qualification Directive and insofar as Irish law precluded this payment based on the status of the child’s parents, this was incompatible with EU law.


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Key European case law

A Member State is obliged to examine an asylum application if transfer would expose the applicant to a serious risk of a violation of fundamental rights

Court of Justice of the EU ruling on the transfer of asylum seekers under the EU Dublin Regulation Cases C-411/10 and C-493/10 M.E.


McCarthy: Rights of EU citizens to regularise the residence of their non-EU spouse

Court of Justice of the EU judgment in the case of McCarthy v Secretary of State for the Home Department (in UK).


Zambrano: Rights of non-EU parents of a child with European citizenship to live in the EU

Court of Justice of the EU judgment in the case of Zambrano v Office national de l’emploi (in Belgium).

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