About this case:

• Citation:
  [2024] IEHC 386
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment for the High Court, Ms Justice Marguerite Bolger confirmed that the entitlement to child benefit in Irish law is “unambiguously and emphatically limited to the person with whom a qualified child normally resides and equally unambiguously and emphatically is not conferred on the child themselves, either during their minority or, subsequently, even where their parent or a qualified person with whom they had resided has, for whatever reason, not received the child benefit in respect of them”.

Derek Shortall SC and Brendan Hennessy BL appeared for the applicant, and Andrew Fitzpatrick SC and Francis Kieran BL appeared for the respondents.

Background

The applicant, a 30-year-old woman originally from Romania, resided in Ireland since her childhood with her parents and sibling. Her parents had unsuccessfully applied for child benefit on a number of occasions.

In 2012, the applicant’s mother moved to Germany and the applicant had no contact with her subsequently. The applicant turned 18 in March 2012 and continued to reside with her father, who made an application for arrears of child benefit in June 2012. That application was refused on the basis that it should have been brought by the applicant’s mother.

Following an application on the applicant’s behalf by her solicitor, the first respondent invited the applicant to submit her own application for child benefit. In a decision dated 1 February 2022, the first respondent refused the applicant’s claim as she was not a qualified person to apply. The applicant subsequently brought judicial review proceedings.

The High Court

Ms Justice Bolger considered that the application for leave to bring judicial review proceedings was not brought before the court until 27 May 2022, but that given the nature of the proceedings and the short period of delay outside the three-month period provided by Order 84 of the Rules of the Superior Courts, the court would extend time to bring that application.

The High Court proceeded to consider s.220(1) of the Social Welfare Consolidation Act 2005, which limits those qualified for child benefit to “a person with whom a qualified child normally resides”.

The court also had regard to the Supreme Court decision in Michael (a minor) & Ors v. Minister for Social Protection [2021] 3 IR 528 which determined that a child is not entitled to receive payment of child benefit, noting that the applicant did not dispute that position but instead contended that she was entitled to apply for child benefit for herself as a child of migrant workers who have exercised their rights of free movement within the EU.

Observing that Irish law may require to be disapplied where EU law gives rise to a contrary right upon which a person is entitled to rely before a national court, Ms Justice Bolger considered that the question for her determination was whether the applicant had a right under EU law to be paid child benefit directly.

EU law

The applicant relied upon Regulation 1408/71 up to 31 April 2010 and on Regulation 883/2004 from 1 May 2010 onwards, which provide for child benefit as a family benefit to be paid by a member state.

The applicant also relied upon van Munster Case C-165/91, which stated inter alia that where migrating workers exercise their right to free movement, they should not lose social security benefits guaranteed to them as such could discourage workers from actually exercising their right to freedom of movement.

Ms Justice Bolger highlighted that “social security systems still remain largely creatures of national law as there is no Community harmonisation in this field, which means that “the conditions governing the right or obligation to become a member of a social security scheme are a matter to be determined by the legislation of each Member State” (at para. 36 of the court’s decision in Engelbrecht, Case C-262/97). This approach of the CJEU is consistent with the express provisions of Regulation 883/2004 which refers to the primary role of national social security legislation.”

Finding that Regulation 883/2004 “repeatedly cites the entitlement of the individual as that which is conferred by national legislation”, the court recognised that the applicant’s pleaded case was essentially that the decision in Humer, Case C-255/99 entitles the child of a migrant worker to directly invoke the entitlement to a family benefit such as Irish child benefit, pursuant to the Regulations in order to apply for the benefit themselves without the intervention of the migrant worker.

Ms Justice Bolger firstly considered the judgments in Hoever and Zachow, Joined Cases C-245/94 and C-312/94 and Trapkowski, Case C-378/14, noting the conclusions of the Court of Justice of the European Union (CJEU) that it is for the competent national authority to determine the persons who, in accordance with national law, have a right to family benefits and that national law cannot require the parent receiving the benefit to live in the Member State where the other parent is living and working.

Turning to Humer, the judge observed that Austrian law expressly allowed a child to apply for the entitlement at issue therein, which was maintenance against a non-custodial parent. Noting the CJEU’s finding that Ms Humer could directly invoke Articles 73 and 74 of Regulation 1408/71, the predecessor of Regulation 883/2004, where the conditions governing the application of those articles were otherwise satisfied.

Ms Justice Bolger considered that the findings in Humer were premised on the applicant having entitlements in Austrian law that they then sought to assert in France, noting that “Austrian law expressly conferred the right to claim the benefit in question on a minor child rather than on their parents”.

The judge continued: “Irish law makes no such concession in relation to who can receive child benefit which is unambiguously and emphatically limited to the person with whom a qualified child normally resides and equally unambiguously and emphatically is not conferred on the child themselves, either during their minority or, subsequently, even where their parent or a qualified person with whom they had resided has, for whatever reason, not received the child benefit in respect of them.”

The court confirmed that Humer did not confer a right in EU law on the applicant as the child of a migrant worker who has exercised their right of free movement to apply for Irish child benefit in their own capacity, emphasising that the refusal of her application on grounds that she was not a qualified person pursuant to s.220(1) had “nothing to do with her status as the child of migrant workers and the decision does not discriminate on grounds of her parents’ exercise of their right of free movement and is not contrary to EU law”.

Conclusion

Accordingly, the High Court refused the application and declined to refer any question of law to the CJEU.

Drutu v The Minister for Social Protection & Ors [2024] IEHC 386