European Court of Human Rights rules that Ireland did not breach the Convention’s discrimination provisions by refusing child benefit to mothers who were awaiting a residency status decision
On 22 June 2023, seven European Court of Human Rights (‘ECtHR’) Justices unanimously concluded that Ireland did not violate the Convention for the Protection of Human Rights and Fundamental Freedoms (the ‘Convention’) by refusing to grant child benefit to two mothers who at the time of making the application for child benefit were not lawfully resident in Ireland, but who were awaiting a residency decision – notwithstanding that their children already had a right to reside in the State.
The ECtHR, which included Ms Justice Síofra O’Leary, found that at the time of applying for child benefit the applicant mothers, who were in the direct provision system, were not in a “relevantly similar situation to persons who already had the status of legal resident in Ireland” – and that as a result, Ireland’s refusal to grant the benefit to the applicants did not constitute a breach of Article 14 of the Convention (which prohibits discrimination) read in conjunction with Article 1 of Protocol No. 1 (which protects property). The applicants have three months from the date of the judgment to seek to refer (appeal) the case to the Grand Chamber of the ECtHR.
The two separate applications in this case were considered by the ECtHR to concern a “similar subject matter”, and were dealt with in the same judgment. In both situations, a child gained lawful residency in Ireland (either as a result of their Irish citizenship, or their asylum status) and their mother then applied for lawful residency (either on the basis of their parentage of an Irish citizen, or on foot of an application for family reunification). Whilst this application was pending, the mother then applied for child benefit but was refused on the basis that she – as the person entitled to receive the child benefit – had not been granted a right to reside in the State. In both situations, the mother was then granted lawful residency status, and at that stage began receiving child benefit.
The dispute therefore arose in relation to the period during which the child benefit had been refused (i.e. between the date on which the child became entitled to reside in Ireland, and the date on which their mother became entitled to do the same). The applicants brought their case against Ireland to the ECtHR on 16 June 2020, and grounded their submissions upon Article 14 of the Convention – read in conjunction with both Article 1 of Protocol No. 1, and with Article 8 (which protects the right to respect for private and family life).
The ECtHR held that Article 8 was inadmissible on the basis that child benefit could not be said to be a mechanism through which the applicants expressed their right to family life. The ECtHR accepted that child benefit generated a proprietary interest such that the applicant mothers – as opposed to their children (who were not the persons entitled to receive the child benefit) – could rely upon Article 14 as read in conjunction with Article 1 of Protocol No. 1. However, the ECtHR held that Ireland had not in fact contravened those provisions of the Convention.
The basis for the ECtHR’s decision was that to prove discrimination in this context, each mother was required to show firstly that she was “in a relevantly similar position, in terms of legal status, to her chosen comparators, i.e., parents with a legal right to reside in Ireland”, and secondly that Ireland had treated her differently from those comparators. As the applicant mothers did not have lawful residency status at the time that they applied for child benefit, the ECtHR found that they had not satisfied this first requirement, and no contravention of Article 14 had arisen. The ECtHR also considered immigration policy to be relevant in coming to its decision, noting that each mother made an application for child benefit “when their essential material needs were being met through the system of direct provision”.
Click here for the judgment in Case of X and Others v Ireland App Nos 23851/20 and 24360/20 (ECHR, 22 June 2023).