A mother who spent several years in direct provision with her husband and son is entitled to compensation from the State over a delay in determining her application for international protection, a High Court judge has ruled.

The delay by the immigration service between May 2011 and May 2012 in deciding the application was inordinate, in breach of the rights of the woman and child and also breached the duties of the State under the Constitution and EU law, Mr Justice Michael White held.

The amount of compensation will be decided later.

The judge said the protection application made in May 2007 by the woman, after she had been refused refugee status, should have been finalised by May 2011. Protection was granted in May 2012. The couple’s son was born in direct provision in 2007.

Administrative authorities should be conscious of the length of time asylum and protection applicants spend in direct provision, the judge said. “The direct provision system meets the basic needs of the applicants, but is far from ideal.”

Serious issues

The Minister for Justice faced serious issues relating to immigration policy and maintenance of the common travel area with the UK, he added. “The direct provision system has been introduced and operated for that reason.”

However, “very lengthy periods in direct provision are undesirable”.

He noted the couple in this case were professionals who found it deeply frustrating that they could not work and provide a home for their son instead of what the woman described as the “institutionalised regime” in the direct provision centre.

The woman sought child benefit for her son after his birth, but was refused. After the family got protection in 2012, they got child benefit.

In judicial review proceedings, the mother and child sought various declarations and orders including – because protection was ultimately granted – that child benefit should have been paid from his birth.

In his judgment on Friday, Mr Justice White said granting subsidiary protection did not oblige the State to backdate child benefit, which, he accepted, was “a core benefit”.

Provisions of the Social Welfare Consolidation Act excluding people applying for subsidiary protection from social welfare entitlements, because such entitlements require habitual residence, are not unconstitutional and do not offend the EU 2004 qualification directive or Charter of Fundamental Rights of the EU, he said.

In this case, there was a delay in granting the mother subsidiary protection. Because of the complicated history of her application for refugee status, previous judicial review proceedings by her and other matters, the effective date of her application was January 2010, he held.

No discretion

If the Minister for Justice is responsible for culpable delay in considering a subsidiary protection application, the Minister for Social Protection has no discretion under social welfare law to allow for backdating child benefit if a protection claim is successful, he noted.

If a protection applicant is to remain in direct provision for a very lengthy period, it is “incumbent” on the Minister for Justice to ensure their protection application is processed within a reasonable time. Applicants must also process their own applications within a reasonable time, he added.

It was open to the immigration services to decide this protection application from April 2010, but the decision was made in May 2012, two years later, and no explanation was proffered for that delay. The application should have been finalised by at least May 1st, 2011, and the delay, combined with the effect of the law refusing child benefit, breached the constitutional and EU law rights of the mother and son.

Earlier, he noted affidavits on behalf of the State outlined serious concern that, should protection applicants get access to full social welfare, labour and housing rights, Ireland could “very quickly find itself dealing with an asylum crisis of significant proportions”.