Payment of child benefit cannot be withheld on the basis of immigration status of parent

The Court of Appeal in the cases of Agha (a minor) & ors v Minister for Social Protection & ors and Osinuga & ors v Minister for Social Protection & ors [2018] IECA 155 recently declared that Sections 246(6) and 246(7) of the Social Welfare Consolidation Act 2005 (as amended)(“the 2005 Act”) were unconstitutional. The declaration of unconstitutionality will take effect from 1st February 2019. This will mean that a parent of an Irish citizen child, both of whom are residing in the State, cannot be refused child benefit in respect of that child on the basis that the parent does not yet have a right to reside in the State.

The Court also held that the State was entitled to withhold a payment of child benefit to a parent who did not yet have a right to reside in the State, in the case of a non-Irish citizen child, prior to the grant of refugee status to the child.

In reaching its decision in respect of child benefit payable to an Irish citizen child, the Court asked whether by denying the child benefit by reason of the immigration status of the parent claiming that benefit, it can be said that the child is not being treated equally to the child’s peers (in breach of Article 40.1 of the Constitution). The Court concluded the child would not be treated equally in such circumstances. The Court rationalised that as child benefit is not means tested, the State has acknowledged its interest in making a contribution to the welfare of all children, regardless of parental circumstances.

The Court held that an Irish citizen child resident in the State has a strong claim to be treated equally to fellow Irish citizen resident children especially in circumstances where the basic universal payment is ultimately intended for the benefit of the child.

The Court considered whether the exclusion from child benefit on the basis of the immigration status of the child’s parent could be objectively justified and found it could not. The Court said any such objective justification would need to be compelling. In this case the exclusion sought to deter the conduct of a parent (i.e. opportunistic welfare tourism) but at the expense of a payment designed for the child, which was otherwise universally available to all citizen children resident in the State.

Accordingly, the unequal treatment was found to be unconstitutional.

This decision will greatly assist many families, particularly in light of the waiting times of asylum and “Zambrano” type applications at present. It is important to note that both the parent and child still need to be resident in the State, among other criteria, to qualify for child benefit.

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