Case Studies » Child Benefit » Child Benefit - Case from 2016 Annual Report (ref 2016/02)

2016/02 Child Benefit

Summary decision

Question at issue: Habitual residence

Background: The appellant came to Ireland in 2009 and had been living in ‘direct provision’ accommodation while awaiting the outcome of an application she made to the Office of the Refugee Applications Commissioner for a declaration as a refugee in accordance with the Refugee Act, 1996. Ultimately, the Minister for Justice and Equality declared her to be a refugee with effect from a date in 2016. The Deciding Officer determined that she was habitually resident in the State with effect from that date and her entitlement to Child Benefit was determined accordingly. In her appeal against that decision, the appellant referred to the considerable time it had taken to receive a declaration of refugee status, and she sought to have her claim backdated to the date on which she had applied for asylum.

Consideration: The Appeals Officer, having considered the evidence in accordance with the governing legislative provisions, noted that it is a primary condition of entitlement to Child Benefit that a person must establish that he or she is habitually resident in the State. He made reference to the legislation on habitual residence and, in particular, to Section 246(5) of the Social Welfare Consolidation Act 2005, noting that it provides that a person who does not have a right to reside in the State may not be regarded as being habitually resident. He noted that the governing legislation provides that persons who have made application for a declaration of refugee status may not be regarded as habitually resident while awaiting the outcome of such an application, as provided for in Section 246(7) of the Act and, where granted permission to remain, that they may not be regarded as being habitually resident in the State for any period prior to that date. The relevant provision is cited as Section 246(8) of the Social Welfare Consolidation Act 2005.

The Appeals Officer concluded that the appellant had not established that she met the habitual residence condition prior to the date in 2016 when she was declared a refugee, and determined that her claim to Child Benefit was awarded appropriately from a date in 2016.

Outcome: Appeal disallowed.