This was an appeal against the order of the High Court judge refusing the appellant, an EU citizen and member of the Roma community, relief by way of judicial review of refusals of her applications for Child Benefit, Jobseekers Allowance [JSA] and Supplementary Welfare Allowance [SWA].
Section 246 (5) of the Social Welfare Consolidation Act, 2005 provides that a person who does not have the ‘right to reside’ in the State will not be regarded as ‘habitually resident’ in the State. JSA and SWA are subject to the habitual residence condition. The appellants claims for benefit were rejected on the basis that she did not have a right to reside having regard to Directive 2004/38/EC and/or the European Communities (Free Movement of Persons) (No.2) Regulations 2006 as amended, and was, therefore, not habitually resident in Ireland.
In relation to the JSA application, the appellant contended that at the relevant time she was a jobseeker, and as such, she had a right to reside which derived directly from Article 45 (2) TFEU and Articles 2 and 5 of Regulation (EU) No. 492/2011 and argued that JSA is a payment that is intended to facilitate access to the labour market as well as to provide social assistance.
The issue on appeal was whether the trial judge fell into error when she concluded that JSA was in the nature of social assistance and not a payment made to facilitate access to the labour market. The High Court had held that JSA is a special non-contributory cash benefit within the meaning of Articles 3 and 70 of the Regulation, that the regulation applied, and that it may therefore be subject to a habitual residence requirement which itself depends upon there being a right to reside. If JSA was found to be a payment made to facilitate access to the labour market then no habitual residence requirement may be imposed as it would come within the waiver in Article 7 of the Co-ordination of Social Security Directive (883/2004/EC).
In analysing the issue, the Court of Appeal found that although JSA is described as social assistance within s. 139 of the Act of 2005 and that it has been included by the State within the list of special non-contributory cash benefits in Annex X of Regulation (EC) No. 883/2004, these matters were not of themselves determinative or dispositive of the issues in the case.
The Court noted that the amount of JSA is virtually identical in amount to the SWA (circa €203) and found that there is nothing to indicate that there is any element of the JSA that reflected any additional costs which could be reasonably associated with seeking employment, over and above what is required for basic living and the maintenance of human dignity. The Court characterised it as “a basic minimal subsistence payment made to a qualifying unemployed person, as opposed to a payment to a person which is designed and intended to assist/enable the person to gain employment”. The Court of Appeal thus found that JSA is a special non-contributory cash benefit within the meaning of Articles 3 and 70 of the Regulation.
In respect of SWA, the Court of Appeal also found that there is nothing to preclude the imposition of a habitual residence requirement which in turn presupposes a right to reside. The co-ordination regulation excludes from its ambit “social and medical assistance” and therefore a habitual residence condition is not prohibited by virtue of Article 7.
In conclusion, the Court found that the appellant has not established a right to reside here following the cessation of her self-employment. While she could have retained a right to reside if she could bring herself within Article 7(1)(b) of the residence directive, she had not done so. A consideration of whether she had “sufficient resources” so as not to become a burden on the social assistance system of the state was required to be undertaken by the Minister. The Court of Appeal was satisfied that the decision that this condition was not fulfilled was a valid decision made after a sufficient consideration and assessment of the personal circumstances of the appellant on the basis of such information as the appellant herself had provided, and on that basis alone it was open to the Minister to decide that the appellant did not have a right of residence by virtue of Article 7. She was therefore not entitled to receive SWA or JSA.
Finally the Court noted that in any event there existed a conjunctive requirement within Article 7 (1) (b) that she “have comprehensive sickness insurance cover in the host Member State” included in the transposing Statutory Instrument 656/2006 at Article 6(2)(ii). For that reason alone, the appellant would fail to come within the terms of Article 7 of the residence directive and found that in a judicial review matter of this kind, an applicant for relief must demonstrate not only that she is entitled to the relief sought, but also that the granting of such relief is something from which she can derive a benefit. In circumstances where the Appellant had not contended that she had relevant health insurance in order to satisfy the additional requirement of Article 7 (1) (b), the Court found it would be futile to exercise its discretion to grant an order to quash the original decision refusing her SWA.
It is of note that the Court of Appeal declined to make a reference under Article 267 TFEU to the CJEU for a preliminary ruling on the validity and interpretation of relevant EU law. The Court also declined to decide whether the appellant in this case fulfilled the requirements for being considered a genuine jobseeker, as the decision against her in relation to her application for JSA was refused only on the ground that she could not satisfy the habitual residence test because she has no right to reside.
Read the Court of Appeal judgment here
Read the High Court judgment here