Challenge to refusal to backdate benefit pay

A woman who spent more than six years in direct provision with her husband before they were granted subsidiary protection here has challenged the refusal to backdate child benefit payments for their eight-year-old Irish-born son.

The case, brought by the woman and child, is regarded as a test case raising significant issues under Irish and EU law concerning the rights of children and the child benefit entitlements of people who are granted subsidiary protection.

No regard seems to have been paid to the interests of this child in the various decisions on child benefit, argued Michael Lynn, instructed by the Free Legal Advice Centre, for the applicants.

In a sworn statement, the woman said she and her husband have professional qualifications and their living conditions while in direct provision from 2006 to 2012, along with not being permitted to work, were “distressing and damaging” to both of them.

In opposing the case, the State said the couple and child got total weekly payments of €47.80 in direct provision and had “all their needs met”.

It also argued that legal actions by the couple contributed to delays processing their protection applications.

The core issues in the case are whether the woman is entitled to child benefit for her son from (1) his date of birth; (2) date of first application for child benefit or (3) the date subsidiary protection was granted.

The applicants argue the appropriate dates are his late 2007 date of birth or when she first sought child benefit in April 2008.

The State contends the appropriate date for payment of child benefit is May 2012, when subsidiary protection was granted.

It maintains, under amendments made in 2009 to the Social Welfare Consolidation Act 2005, there was no entitlement to child benefit before May 2012 because the woman could not be regarded as “habitually resident” in the State.

Opening the case before Mr Justice Michael White, Mr Lynn said the delay of more than six years processing the couple’s protection applications was inordinate and inexcusable.

Ireland is the only country in the EU with such “appalling delays” which result from Ireland’s two-tier system, unique in the EU, under which separate applications have to be made for refugee status and subsidiary protection, he said. New laws providing for a one-tier system have yet to come into effect, he added.

Counsel also argued, if the 2009 habitual residence amendments to the Social Welfare Consolidation Act allow the State pay child benefit only from the date subsidiary protection is granted, those breached national and EU law.

Because the woman got subsidiary protection in 2012, she must be viewed as a person deserving of protection, and associated benefits under EU law, including child benefit, from the time she first sought it in 2006, he said.

The case, expected to last four days, continues today.