Saturday 17 November 2018

Child living in direct provision wins fight for welfare

(stock photo)
(stock photo)

Tim Healy

An Irish child is entitled to child benefit despite her mother not having residency status in Ireland, a court has ruled.

The case centres on a three-year-old girl who lives in direct provision with her Nigerian mother.

Her father is a naturalised Irish citizen but the couple's relationship broke down some time after her birth.

Her mother sought child benefit in October 2015 but was refused it until she was given residency status in January 2016.

The mother said her daughter had a hereditary blood disease and they were living in difficult circumstances in direct provision with a weekly allowance of €43.

Yesterday, the Court of Appeal found the provisions of the Social Welfare Act, which prevented payment of child benefit to the girl until her mother was granted residency, was unconstitutional.

Child benefit is "designed for the benefit of the child", even if it was made payable to the qualifying parent, Mr Justice Gerard Hogan said.

He found the failure to treat the girl equally to other Irish citizen children breached the equality provisions under Article 40.1 of the Constitution.

The court suspended the formal declaration of unconstitutionality until February 1 next year.

However, the judge directed that the small amount of backdated child benefit covering the period from October 2015 to January 2016 should be paid.

The court also looked at a related case involving an Afghan couple and their four children who were also living in direct provision.

They got permission to remain here on the basis of their youngest child securing refugee status.

Mr Justice Hogan ruled that because the now five-year-old boy is not a citizen, he was not entitled to child benefit until he was recognised as a refugee in January 2015.

There was no entitlement to claim child benefit for the couple's three other children prior to the September 2015 decision permitting the family remain here, Mr Justice Hogan also held.

The State "cannot generally be expected to make social security payments to persons with no right to reside here", he said.

Irish Independent

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