High Court Appeal G0102

DN (a minor) and AS v. Chief Appeals Officer and Others [2017] IEHC  52, White J, 13 February 2017

In 2006, Ms S came to Ireland and applied for asylum seeking refugee status. Her application was refused in March 2007. In December of that year her son DN was born. There was litigation around the refugee status refusal until 2010, when she made an application for subsidiary protection under the EC (Eligibility for Protection) Regulations 2006. Ultimately, she was granted subsidiary protection on 1 May 2012.

While waiting for it to be processed, Ms S and her family lived in Direct Provision. She made several applications for child benefit in respect of DN. These applications were refused by the Department of Employment Affairs and Social Protection on the basis that as an applicant for subsidiary protection, she was not habitually resident in Ireland. Eventually she was granted subsidiary protection and awarded child benefit, but the award took effect only from 1 May 2012, the date on which the subsidiary protection declaration was made. The award was appealed but the appeals officer found that the definition of habitual residence in section 246 of the Social Welfare Consolidation Act 2005 expressly excluded applicants for subsidiary protection, and that section 246(8)(c) expressly precluded back-dating benefits for persons granted subsidiary protection beyond the date of the declaration.

Ms S and DN challenged the appeals officer’s decision not to backdate the award on the basis that the exclusions in section 246 post-dated the date of Ms S’ first application for child benefit and that the said exclusions were unconstitutional.

The High Court (White J) found that the constitutionality of the exclusions had already been upheld in earlier cases and that they were not applied retrospectively as her most recent application for child benefit was made after their enactment. The Court held that while Ms S was an applicant for subsidiary protection she was ineligible for child benefit, but found that the delay on the part of the Minister for Justice and Equality in determining her application for subsidiary protection violated her rights and those of D under EU law and the Constitution.