The European Court of Human Rights (ECHR) has found that the non-payment of child benefit to two mothers living in direct provision was not in breach of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The case centred on the exclusion of parents, not yet granted a legal right to reside in the State, but whose child has a legal right to reside here, from receiving child benefit payments.
The applicants, two mothers and their two children, argued that child benefit policy discriminated against families in which the parents, although lawfully present in the State, were in the immigration process.
The court found that the immigration status of the mothers 'X' and 'Y' at the time they had first applied for child benefit had not been similar enough to parents who had already had legal residency status in Ireland.
Since the applicant mothers had not been in a comparable situation to eligible parents, they had not been discriminated against.
The court reiterated that it was acceptable to have a residency requirement in defining who may claim child benefit as social security systems operated primarily at the national level.
As this is a chamber judgment, both sides now have three months within which they can ask for the case to be referred to the Grand Chamber of the ECHR for a final ruling.
The ECHR examined the applications jointly in a single judgment.
'X' is a Nigerian woman who arrived in Ireland in 2013 and gave birth to 'E' on 23 December 2014.
Because her father is an Irish citizen, 'E' is an Irish citizen.
The child's mother sought child benefit in October 2015 but was refused until she got residency status in January 2016 when she was granted leave to remain as the parent of an Irish citizen child.
'Y' is an Afghan woman who arrived in Ireland with her husband in 2008 and applied for asylum.
In Ireland, the family had three more children, the youngest of whom, 'M', was born in April 2013.
'M' was granted refugee status on 8 January 2015.
'Y' applied for child benefit in February 2015 and was refused as she was not deemed to be habitually resident in Ireland.
On 11 September 2015, she was granted leave to remain on the basis of family reunification, and after this a renewed application for child benefit was successful.
The applicants sought to rely on Article 8 (Right to Respect for Private and Family Life) and Article 1 of Protocol No 1 (Protection of Property), read in conjunction with Article 14 (Prohibition of Discrimination).
In its judgment, the ECHR found that there had been no violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No 1.
The court accepted that it was "the parent who is entitled to receive benefit, rather than the child" and therefore only the applicant mothers, and not their children, could seek to rely on these articles.
It said that "given its statutory basis and universal character, child benefit is undoubtedly paid as of right to habitually resident parents who fulfil the eligibility criteria" and it "therefore must be taken as generating a proprietary interest such that it comes within the ambit of Article 1 of Protocol No 1" .
However, it concluded that it was "unable to find that the legal and factual elements characterising the applicants' situation at the time they first applied for child benefit ... such as to place them in a relevantly similar situation to persons who already had the status of legal resident in Ireland" and who were consequently entitled to child benefit payments.
"Each of them claimed child benefit at a time when their personal immigration status had yet to be determined, and when their essential material needs were being met through the system of direct provision.
"Their immigration status changed with the grant of residence rights within a relatively short time - a matter of months in each case ... with this change of legal status came immediate entitlement to child benefit, which they began to receive from that point in time onwards," the judgment said.
Separately the court found that the applicant's complaint in relation to Article 14 taken in conjunction with Article 8 was inadmissible.
It said that the matter did not come within the ambit of Article 8 as it could not "conclude that child benefit ... represented for the applicants one of the modalities of exercising the right to respect for family life as guaranteed by Article 8 of the Convention."
In the Irish courts, the applicants succeeded in having Sections 246(6) and 246(7) of the Social Welfare Consolidation Act 2005 declared unconstitutional by the Court of Appeal in June 2018 on the basis that it prevented payment of child benefit to Irish child due to immigration status of parent.
However, this was overturned by the Supreme Court in November 2019 which said the Court of Appeal had erred by focusing on the immigration status of the beneficiary of the benefit (the child), and not the claimant (the parent).
Under the 2005 Social Welfare Act, child benefit is paid to a "qualified person" who is "habitually resident in the State".
