The mother of an Irish citizen child, who has spent the past nine years in direct provision, is challenging social welfare laws in the High Court, after her request for Child Benefit was refused.
The woman, from a country in Africa, is the mother of an Irish citizen child whose father is Irish but is not in contact with them. The woman has applied for subsidiary protection and for right of residence based on the fact that she is the mother of an Irish citizen child. She has lived in Ireland for the past nine years in direct provision accommodation and while her applications are pending she is not entitled to work in the State or to social welfare payments beyond the stipend granted to direct provision residents.
The mother applied for Child Benefit payment through the Department of Social Protection on behalf of her Irish child but was refused because she did not meet the habitual residence condition. Under the Social Welfare Consolidation Act 2005, the qualifying child must be ordinarily resident in the State and their parent or guardian must be habitually resident in Ireland. She was told that because she does not yet have a right to reside, she cannot be considered habitually resident.
Counsel for the woman argued that it is the child who is entitled to the payment and who is “part of the Irish nation”, and so she has the right to be treated equally to other Irish children, and be afforded the same benefits.
Mr Justice Noonan granted leave to bring proceedings challenging provisions of the Social Welfare Consolidation Act 2005. The woman will be challenging the constitutionality of provisions which prevent back payment of the benefit where the application of residency is successful. She is also claiming that the refusal amounts to discrimination and a breach of private and family rights under the Constitution and the European Convention on Human Rights.
The Irish Human Rights and Equality Commission is notice party to the proceedings, because there will be other women in the same situation for whom the result of this case will be important.
The case will be heard in April.
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