Legal summary
June 2023
X and Others v. Ireland - 23851/20 and 24360/20
Judgment 22.6.2023 [Section V]
Article 14
Discrimination
Non-discriminatory denial of universal statutory child benefit to two mothers, lawfully present in the State, for non-fulfilment of domestic law habitual residence criterion: no violation
Facts – Each application was brought by a mother and her young child (X and E and Y and M), who were, at the relevant time, going through Ireland’s immigration system. X, a Nigerian national who arrived in Ireland in 2013, gave birth in December 2014 to her daughter, E, who became an Irish citizen at birth through her father. In September 2015, X, who in the meantime had had her asylum claim rejected, applied to the Minister for Justice and Equality for the right to reside in Ireland on the basis of her being the mother of a child who was an Irish citizen. While this application was pending, X also applied, for child benefit in respect of E. Her application was rejected on the ground that she did not satisfy the condition of habitual residence under the Social Welfare Consolidation Act 2005 (“2005 Act”), given that she had not yet been granted the right to reside in Ireland. X was granted the right to reside in January 2016 and thereupon deemed eligible for child benefit in relation to E and has been in receipt of it since then. Y is an Afghan national who arrived in Ireland in 2008. Her application for asylum was unsuccessful. However, in January 2015 the authorities decided to grant asylum to her fourth child, M, who was born in Ireland in 2013. The other family members requested family reunification with M and while this matter was pending, Y applied for child benefit in respect of all her children. This was refused as she did not fulfil the habitual residence condition. Family reunification was granted in September 2015, following which Y reapplied for child benefit. This was granted with effect from the date on which Y had been granted permission to reside in Ireland.
All the applicants came under Ireland’s system of direct provision of accommodation and material support to asylum seekers.
X and Y sought judicial review of the initial refusal to grant child benefit. X’s action was limited to the period extending from the birth of E to the granting of her right to reside (just over twelve months) and Y’s action to the period between the granting of asylum to M and the granting of family reunification (eight months). Their claims were heard together and were eventually dismissed by the Supreme Court.
Law –
Article 35 § 3(b) (whether the applicants suffered a significant disadvantage):
The applicants, both in the domestic proceedings and before the Court, had sought to challenge the basis on which they had been deemed ineligible for child benefit so as to obtain retrospective payment of that allowance in respect of the relevant periods. Their claims had thus been of a pecuniary nature. The fact, omitted by the applicants in their application forms, that the amounts in question had been paid in 2018 meant that the applicants had not suffered a significant disadvantage. That was further confirmed by the fact that they had not been exposed to financial hardship at the material time, as they had been in receipt of State support via the system of direct provision. However, the Court determined respect for human rights required an examination of the merits of the applications on two grounds. First, reference had been made in domestic proceedings to the Court’s judgment in Niedzwiecki v. Germany which could be regarded as having been superseded by that in Beeler v. Switzerland [GC]. An examination of the present case thus might serve to further clarify Convention requirements in the area of social welfare. Second, similar applications were currently pending before the Court and, according to the applicants, before the domestic courts, awaiting the resolution of this case. Respect for human rights encompassed the good administration of justice by the Court.
Conclusion: preliminary objection dismissed (no significant disadvantage).
Article 14 read in conjunction with Article 8:
The aim of the child benefit under domestic law, as demonstrated by the evidence before the domestic courts, was essentially a financial contribution by the State to parents, or persons in loco parentis, to meet some of the costs of child‑raising; a universal benefit, in the sense that it was paid at the same rate to all recipients, regardless of their means. As found by the Supreme Court, the adult recipient could freely dispose of the benefit, there being no requirement that it be used solely and exclusively, directly or indirectly, for the benefit of the qualified child. Applying the criteria set down in Beeler, the Court could not conclude that that payment fell within the scope of Article 8 as it could not be said that, beyond having an effect on family life, its intended purpose was to “promote family life and necessarily affect the way in which it is organised”. The Court did not consider that child benefit would or could have been of such significance that the applicants would – as in Beeler – have organised the key aspects of their daily life, at least partially, on the strength of it. Moreover, the respective periods in question had been relatively short and although ineligible to claim child benefit during those periods, both mothers had been accommodated with their children and received material support from the State until their immigration status had been positively determined, at which point they had become eligible and had begun to receive the benefit in question. The child benefit, given the assessment by the Supreme Court of its statutory basis, nature and purpose, could not represent for the applicants one of the modalities of exercising the right to respect for family life as guaranteed by Article 8 and did not therefore come within its ambit.
Conclusion: inadmissible (incompatible ratione materiae).
Article 14 read in conjunction with Article 1 of Protocol No. 1:
(a) Applicability – Given its statutory basis and universal character, child benefit was undoubtedly paid as of right to habitually resident parents who fulfilled the eligibility criteria and therefore generated a proprietary interest such as to bring it within the ambit of Article 1 of Protocol No. 1. Both applicants contended that they had been discriminated against based on the specific nature of their residence status, in that until such time as they were formally granted the right to reside in Ireland it had been impossible for them to be treated as habitually resident there. The Court had recognised residence/immigration status as coming under the term “other status” within the meaning of Article 14, therefore, Article 14, read in conjunction with Article 1 of Protocol No. 1, was applicable in the present case. However, it was clear from the Supreme Court’s judgment that it was the parents who were entitled to receive benefit rather than the child, therefore, only applicants X and Y could rely on those provisions. The child applicants, E and M, could not point to any proprietary interest in their own right.
Conclusion: inadmissible in respect of applicants E and M (incompatible ratione personae); admissible in respect of applicants X and Y.
(b) Merits – In accordance with the principles set out in its relevant case-law, the Court had to first establish whether X and Y had been in an analogous or relevantly similar position to persons who had had the right to reside and therefore had been capable of being habitually resident in the State within the meaning of the 2005 Act and thus eligible for child benefit.
X’s argument that, by virtue of the Zambrano case-law of the Court of Justice of the European Union, (Ruiz Zambrano v Office national de l’emploi (ONEm), C‑34/09, 8 March 2011) from the day her daughter was born she had had a right derived from primary EU law to reside in Ireland, placing her in an essentially similar position to other categories who had enjoyed a right to reside on other legal grounds. That claim had been considered at length by the Supreme Court, which had clarified a parent’s entitlement to residence in a Member State, on Zambrano grounds, could be subject to an application to the relevant authority, which had to have the opportunity to consider it. It had found no basis in EU law for the proposition that upon granting a right to reside in such circumstances all residence-related benefits had to be awarded retrospectively. The precise nature of the claim involved – backdated child benefit – had not been such as to bring the case within the scope of the Zambrano case-law, there having been no risk of the denial of that claim leading to the child losing the benefits of her EU citizenship. There was nothing in that court’s reasoning that could be taken as infringing any right or freedom of X’s under the Convention or producing any effect incompatible with it. In light of the Supreme Court’s assessment of her legal situation at the material time, the Court concluded that X had not then held a status akin to that of legal residence, and so had not been in a relevantly similar position, in terms of legal status, to parents with a legal right to reside in Ireland. As for Y, the Supreme Court had noted that prior to the Minister’s decision on her application for family reunification with her son, she had not had residence rights in the State and therefore had also not been in a relevantly similar position to the same chosen comparators. Accordingly, the applicants’ case had to be distinguished from Niedzwiecki.
As to whether the applicants could claim, on some other basis, to have been in a relevantly similar position to the chosen comparators, the Court, in Carson and Others v. the United Kingdom [GC], had emphasised the essentially national character of social security systems; a point which was of a broader application than in that case. That was also reflected in the fact that under the European Social Charter States, might require not just residence but also a prescribed period of residence before granting non-contributory benefits to those entitled to equal treatment in relation to social security. Further, the purpose of the impugned measure could be described as defining the category of persons who might claim child benefit. While the applicants complained of the exclusionary effect for them, during the period in question, of the lawful residence criterion, that criterion was a necessary corollary of the essentially national character of social security systems and could be said to have an inclusionary effect inasmuch as it broadened entitlement to child benefit so as to include not just Irish nationals or those benefitting from specific forms of residence, but the entire resident population. Both Supreme Court judgments had emphasised the neutral and non-discriminatory nature of the lawful residence criterion, and its effect of making a wide range of people resident in the State on various bases equally eligible for the benefit sought.
The general context of the present case had been that of immigration policy in respect of which the Court had often affirmed that a State was entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of non-nationals into its territory and their residence there. In respect of the applicants’ particular context, each of them had claimed child benefit at a time when their personal immigration status had yet to be determined, and when their essential material needs were being met through the system of direct provision. Their immigration status had changed with the grant of residence rights within a relatively short time, immediately entitling them to child benefit, which they had begun to receive from that point onwards.
Accordingly, the Court was unable to find that the legal and factual elements characterising the applicants’ situation at the time they had first applied for child benefit had been such as to place them in a relevantly similar situation to persons who already had had the status of legal resident in Ireland. The conditions for receipt of a social welfare benefit that came within the ambit of Article 1 of Protocol No. 1 had to be compatible with Article 14. That presupposed, however, that the requirement of comparability was met by the claimant, which it had not been by the present applicants. Therefore, no issue of difference of treatment arose under Article 14.
Conclusion: no violation (unanimously).
(See also Niedzwiecki v. Germany, 58453/00, 25 October 2005; Carson and Others v. the United Kingdom [GC], 42184/05, 16 March 2010, Legal Summary; P.C. v. Ireland, 26922/19, 1 September 2022, Legal Summary; Beeler v. Switzerland [GC], 78630/12, 11 October 2022, Legal Summary)
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This summary by the Registry does not bind the Court.
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