A Romanian family, represented by Northside Community Law Centre, is arguing before the High Court that refusals of social welfare payments breach EU law.
The Romanian national father worked in Ireland from 2004 and subsequently as a self-employed person from 2007 until 2008 when work came to an end. He was then refused welfare payments. He argues that he satisfies the "right to reside" test for the purpose of claiming welfare, on the basis of retaining self-employed status under the EU Citizens' Directive and relevant Irish regulations. He says that as a result of the refusal of welfare he and his family are on the verge of destitution and relying on friends and charity to survive.
The State is arguing that as a Romanian national, he requires a work permit in order to enjoy a right to reside. He claims that the restrictions for Romanian and Bulgarian nationals apply to workers and not to self-employed persons. The Court's interpretation on this matter may have repercussions for other EU nationals in this position.
Please click here to view the Irish Times article.
Northside Community Law Centre is an independent, community-based legal centre which works to protect and develop the legal, social and economic rights of individuals and groups. Please click here to read more about its work.
The Free Legal Advice Centres has produced an information guide on the Habitual Residence Condition.
Ireland introduced the "right to reside" test into social welfare legislation in December 2009, please click here to read a previous Bulletin.
UK legislation also contains a "right to reside" test in relation to social welfare. Its application has been subject to domestic legal challenges (e.g. Abdirahman and Kaczmarek), one of which Patmalniece v. the Secretary of State for Work and Pensions has reached the UK Supreme Court. Judgment is pending and it is anticipated that a preliminary reference to the CJEU may be granted. The issue in Patmalniece is whether the "right to reside" test unlawfully discriminates in breach of EU law. The AIRE Centre, a specialist law centre whose mission is to promote awareness of European law rights, is intervening.
A perhaps inadvertent yet unsurprising effect of the UK right to reside test has been to increase EU jurisprudence which defines what it means to have an EU right to reside. See for example Dias, Ibrahim, Lassal and Teixeira. These cases raise cutting-edge questions as to EU citizenship and self-sufficiency.
Meanwhile the Court of Justice of the European Union has made a landmark ruling in Zambrano that a third-country national parent of dependent EU citizen children enjoys a right to reside in the member state in which they reside. Mr Zambrano is a Colombian national who lives in Belgium with his Colombian wife and two children. Their children are Belgian nationals by virtue of having been born there. He worked in Belgium for five years without a work permit and paid statutory social security deductions, before his employment was terminated by the Belgian labour authorities following an investigation.
Various member states submitted that the EU Citizens' Directive did not apply, Mr Zambrano and his children never having moved to reside in another member state. The CJEU agreed. Nevertheless, they found that as EU citizens, the children were entitled to "genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union". A refusal to grant Mr Zambrano a right of residence and a work permit in Belgium would deprive the children of any meaningful capacity to exercise this fundamental right.
Please click here to view the Human Rights in Ireland Blog.
Both domestic and ECtHR case-law has found that where a state is responsible for destitution, this may breach Article 3 of the European Convention on Human Rights (prohibition on inhuman and degrading treatment). Please click here to view Limbuela and here to view M.S.S. v Belgium and Greece.
Meanwhile the UK transitional arrangements for new accession member states are to end in May 2011, which means that EU nationals from those member states will enjoy full access to the UK labour market. Please click here to view a BBC news article.