Social Welfare Appeal G0126: Maternity Benefit

Year: 2022

Deciding Body: Supreme Court

Title of Payment: Maternity Benefit

Date of Final Decision: 16 December 2021

Keywords: Maternity Benefit, Immigration, Work Permit, PRSI Payments, PAYE Tax, Contract of Services

Organisation who represented the Claimant: N/A

Casebase no: G0126

Case Summary:

This case concerns PAYE and PRSI contributions made while working in Ireland without a valid work permit, and whether they should be taken into account by the Department of Social Protection when assessing eligibility for social insurance payments, such as maternity benefit.

Ms. Shardha Sobhy, a citizen of Mauritius, arrived in Ireland on 5 March 2005, and registered with the Garda National Immigration Bureau (GNIB). From the time she arrived in Ireland until the 26 June 2012, she was granted five consecutive Stamp 2 visas. During that time she was a student and worked in a part-time job. She was lawfully in the State until 26 June 2012. On 21 November 2011, Ms. Sobhy applied to change her Stamp 2 to a Stamp 4. She received a letter from the Irish Naturalisation and Immigration Service (INIS), dated 11 May 2012, refusing her request to change to a Stamp 4. Ms. Sobhy sought an extension of her visa on 20 July 2016.

On 5 August 2016, the Residents Division of the INIS refused to extend her visa, reasoning that the visa had already expired by the time the application for an extension had been received. This letter outlined her rights under the Immigration Act 2004, highlighting that it is illegal to reside in the State without permission from the Minister for Justice and Equality, and the penalties that went with failing to follow the law under The Immigration Act of 2004. This letter also specified that, without her visa, Ms. Sobhy was not entitled to work.

A firm of solicitors representing Ms. Sobhy wrote to the Residents Division of the INIS, in a letter dated 23 November 2016, requesting a review of the decision. It is unknown whether a response was received to this letter.

In 2018, the Minister for Justice introduced a scheme that allowed certain non-EEA nationals, who had a valid student permission during the period of 01 January 2005 to 31 December 2010 and who had not acquired an alternative immigration permission in the intervening period, to apply for permission in the State. Ms. Sobhy applied to the scheme and the INIS addressed this application on 26 February 2019, granting her temporary permission to reside in the State under Stamp 4s conditions for a period of two years from the date of the letter.

Between 2008 and 2019, Ms. Sobhy made numerous social welfare contributions. The respondent and her employer made all of the necessary PRSI and PAYE contributions necessary to receive maternity benefit. The case turns on the period of 26 June 2012 to 03 March 2019 when Ms. Sobhy was a resident of and working in the State without permission to remain or work.

The following is the number of paid contributions Ms. Sobhy made during the specified years:

YearPaid ContributionsReckonable Paid Contributions for Pension
200838 A, 1 J38
200926 A26
201029 A29
201148 A48
201244 A, 1 J44
201333 A33
201452 A52
201553 A52
201648 A48
201751 A51
201837 A37

Ms. Sobhy went on maternity leave on 15 December 2018 and gave birth on 9 January 2019. On 11 April 2019, while a lawful resident in the State, Ms. Sobhy applied for maternity benefit. On 04 June 2019, a Deciding Officer refused her claim for maternity benefit on the basis that she did not have a valid work permit, making her employment uninsurable.

Ms. Sobhy appealed this decision on 23 June 2019. The Appeal was disallowed.