Gusa v Minister for Social Protection

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 13 July 2016
• Neutral Citation: [2016] IECA 237
• Date: 13 July 2016
• Court: Court of Appeal (Ireland)
• Docket Number: 2014/1023 (Article 64 transfer)

[2016] IECA 237

THE COURT OF APPEAL

CIVIL

Finlay Geoghegan J.

2014/1023

(Article 64 transfer)

Finlay Geoghegan J.

Peart J.

Irvine J.

FLOREA GUSA

APPLICANT/APPELLANT

AND

MINISTER FOR SOCIAL PROTECTION, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Right of residence - Jobseekers allowance - Judicial review - Appellant seeking jobseekers allowance - Whether appellant had a right to reside in Ireland

Facts: The appellant, Mr Gusa, is a Romanian and EU national who arrived in Ireland in October 2007. He was initially supported by his adult children in the State and later worked as a self-employed plasterer. He ceased working by reason of the economic downturn in October 2012. His son and daughter-in-law were leaving Ireland for Canada and were no longer in a position to financially support him. In November 2012, he applied for a jobseekers allowance. By decision of the 22nd November, 2012, he was refused because on cessation of his self-employment he no longer satisfied the conditions in Article 6(2)(a)(i) to (iv) of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 and as a self-employed person was not entitled to the protection of Article 6(2)(c)(ii). The appellant sought an internal appeal within the Department of Social Welfare against that decision. That was refused upon the basis that the appellant had not established a continued right to reside in Ireland and therefore had not established habitual residence. On the 25th February, 2013, leave was granted to seek by way of judicial review orders of?certiorari?of the decisions of the 22nd November, 2012 and 21st February, 2013, disallowing the application for jobseekers allowance and a number of related declarations including a declaration that the appellant retained the status of a self-employed person and a right to reside in the State in November 2012, pursuant to Article 7 of Directive 2004/38/EC and/or the Treaty on the Functioning of the European Union (TFEU) and in particular pursuant to Articles 18, 20, 45, 48 and 49 thereof. On the 11th July, 2013, the High Court (Hedigan J) dismissed the appellant's claim on the grounds that: 1) the appellant did not have a right to reside in the State at the time of his application for job seekers allowance; and 2) the right to reside condition imposed by the Irish legislation as an effective condition for eligibility for job-seekers allowance whilst indirectly discriminatory was objectively justifiable on grounds other than the nationality of the appellant and hence not inconsistent with EU law. An application was made to the High Court judge by the appellant to vary the judgment already delivered by reason of the judgment of the CJEU in?case C-140/12 Pensionsversicherungsanstalt v Peter?Brey. That application was refused on the 17th October, 2013. The appellant appealed to the Court of appeal against the decision of the High Court, submitting that he had a right to reside in Ireland under Article 7 of the Directive as implemented in Ireland by the Regulation 6 of the 2006 Regulations, and failing that he had a right pursuant to the TFEU and in particular Articles 21 and 49. The appellant submitted, in reliance on the judgment of the CJEU in?Brey?at para. 77, that the respondent, the Minister for Social Protection, was obliged to carry out an overall assessment of the specific burden which the grant of a jobseekers allowance to the appellant would place on the social assistance system as a whole by reference to his personal circumstances prior to deciding that he had no right to reside in the State.

Held by Finlay Geoghegan J that if the appellant did not have a right to reside in Ireland, then a second issue arose for determination as to whether the imposition of the right to reside condition under Irish Law for eligibility to jobseekers allowance to a person in the situation of the appellant is compatible with EU law and in particular whether it is non-discriminatory and proportionate.

Finlay Geoghegan J held that she would refer the following questions to the Court of Justice of the European Communities prior to deciding the appeal: 1) Does an EU citizen who (1) is a national of another Member State, (2) has lawfully resided in and worked as a self-employed person in a host Member State for approximately four years, (3) has ceased his work or economic activity by reason of absence of work and (4) has registered as a jobseeker with the relevant employment office retain the status of self-employed person pursuant to Article 7(1)(a) whether pursuant to Article 7(3)(b) of Directive 2004/38/EC or otherwise; 2) If not, does he retain the right to reside in the host Member State not having satisfied the criteria in Article 7(1) (b) or (c) of the Directive or is he only protected from expulsion pursuant to Article 14(4) (b) of the Directive; 3) If not, in relation to such a person is a refusal of a jobseekers allowance (which is a non-contributory special benefit within the meaning the meaning Article 70 of Regulation 883/2004) by reason of a failure to establish a right to reside in the host Member State compatible with EU law, and in particular Article 4 of the Regulation.

Judgment approved.

Interim Ruling of the Court delivered by Ms. Justice Finlay Geoghegan on the 13th day of July 2016

1 This appeal concerns the entitlement of a Romanian national and EU citizen who carried on a business as a self employed plasterer in the State for approximately four years, during which time he paid tax and PRSI to continue to have a right to reside in the State and receive a jobseekers allowance after he ceased his self employed activities due to the economic downturn.

Background facts

2 The facts are not in dispute. The appellant is a Romanian and EU national who arrived in Ireland in October 2007. He was initially supported by his adult children in the State from October 2007 to October 2008. From October 2008, until October 2012, he worked as a self employed plasterer and made returns and paid his tax and PRSI and other levies on his income. He ceased working by reason of the economic downturn in October 2012. He has deposed that he then had no income and his son and daughter-in-law were leaving Ireland for Canada and were no longer in a position to financially support him. In November 2012, he applied for a jobseekers allowance. By decision of the 22nd November, 2012, he was refused. The reason given for the refusal was that one of the qualifying conditions is that he must be habitually resident in the State and that this requires him to demonstrate that he has a right to reside in accordance with the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 ( SI 656/2006) which he had not done. The decision identifies that on cessation of his self employment he no longer satisfied the conditions in Article 6(2)(a)(i) to (iv) of the 2006 regulations and as a self employed person is not entitled to the protection of Article 6(2)(c)(ii).

3 The appellant was informed in the same decision that he could apply to the Minister for Justice, Equality and Law Reform for a permanent residence certificate under Article 15 of the 2006 Regulations in order to demonstrate his right to reside.

4 The appellant sought an internal appeal within the Department of Social Welfare against that decision. That was refused upon the basis that the appellant had not established a continued right to reside in Ireland and therefore had not established habitual residence. In each decision reference was made to the similarity of the appellant's circumstances with those, the subject of the judgment of the High Court (Dunne J.) in Solovastru v. Minister for Social Protection [2011] IEHC 532.

5 On the 25th February, 2013, leave was granted to seek by way of judicial review orders of certiorari of the decisions of the 22nd November. 2012 and 21st February, 2013, disallowing the application for jobseekers allowance and a number of related declarations including a declaration that the appellant retained the status of a self employed person and a right to reside in the State in November 2012, pursuant to Article 7 of Directive 2004/38/EC and/or: the Treaty on the Functioning of the European Union (TFEU) and in particular pursuant to Articles 18, 20, 45, 48 and 49 thereof.

6 It is important to emphasise that the appellant has never contended that he has resources to sustain himself and his family in the State or has sickness insurance cover. On the contrary he has deposed he is unable to sustain himself and his family in the State. He also does not contend that he was entitled to apply for permanent residence in November 2012 but that he would be entitled to apply if lawfully resident until October 2013.

7 For the reasons set out in a written judgment delivered on the 11th July, 2013, the High Court (Hedigan J.) dismissed the applicant's claim (with the claim of another applicant who is not an appellant).

8 Subsequent to the delivery of the High Court judgment, but prior to the finalisation of any order of the High Court dismissing the appellant's claim the Court of Justice of the European Union (CJEU) delivered judgment on the 19th September, 2013, in case C-140/12 Pensionsversicherungsanstalt v. Peter Brey. An application was made to the High Court judge on behalf of the appellant to vary the judgment already delivered by reason of the judgment of the CJEU in Brey. That application was refused on the 17th October, 2013.

Further decisions of CJEU

9 Between the High Court judgment and the hearing in the Court of Appeal there were two further judgments of the CJEU relevant to the issues on appeal: case C-333/13 Dano (11th November, 2014) and case C-67/14 Alimanovic (15th September, 2015). Since the hearing in the Court of Appeal the CJEU has delivered judgment in two matters in which the opinion of the Advocate...