Macovei v Minister for Social Protection

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 21 July 2017
• Neutral Citation: [2017] IEHC 593
• Court: High Court
• Docket Number: [2014 No. 180 JR.]
• Date: 21 July 2017

BETWEEN

ALEXANDRU MACOVEI

APPLICANT

AND

THE MINISTER FOR SOCIAL PROTECTION

RESPONDENT

[2017] IEHC 593

McDermott J.

[2014 No. 180 JR.]

THE HIGH COURT

JUDICIAL REVIEW

Social security – Social Welfare Consolidation Act 2005 – Refusal to give jobseeker's allowance – Habitual resident – Art. 18 of the Treaty on the Functioning of the European Union (TFEU) – Mobility of labour without discrimination – Regulation 492/2011 on the Freedom of Movement of Workers – Directive 2004/38/EC – Regulation 883/2004.

Facts: The applicant had challenged the respondent's decision to refuse jobseeker's allowance to the applicant in the present judicial review application. The applicant had applied for that allowance after 26 days of his arrival in Ireland. The applicant contended that the respondent had applied the incorrect test under s. 246 of the Social Welfare Consolidation Act 2005, namely, the habitual resident test. The applicant argued that the provision s. 246 (1) of the Act of 2005 was discriminatory as European Union law did not require any time period for the purpose of meeting the habitual resident test.

Mr. Justice McDermott refused to grant the desired relief to the applicant. The Court observed that art. 24(2) of the reg. 883/2004 provided that the host member state was not under any obligation to provide social assistance under art. 14 (4)(b) to a person during the first three months of his residence. The Court found that the period of residence of the applicant in Ireland was only for 26 days when he made the application for seeking the jobseeker's allowance and thus, the respondent was correct in refusing that application. The Court held that the reg. 883/2004 made it crystal clear that it was the exclusive discretion of the member state in which the person concerned resided to set out the criteria for meeting the 'habitual resident' test. The Court noted that s. 246(1) of the 2005 Act was not discriminatory as it applied equally to Irish citizens as well as EU citizens. The Court found that the respondent was fettered with discretion to scrutinise the applicant's application from all angles such as fulfilment of statutory residence requirement, pre-employment status, centre of interest and market employability.

JUDGMENT of Mr. Justice McDermott delivered on the 21st day of July, 2017

1 The applicant challenges the decision made by the respondent refusing him Jobseeker's Allowance in respect of a three week period from the 5th to 27th February, 2014 amounting to the sum of €432.00. He is a Romanian national who moved to Ireland on or about 10th January, 2014 for the purpose of seeking and taking up employment in the State. He made numerous applications and attempts to obtain employment from mid-January to mid-February 2014. He applied for Jobseeker's Allowance on 5th February, 2014, twenty-six days after his arrival in the State. This was refused in a decision dated 11th February, 2014 by the deciding officer who stated:-

'One of the qualifying conditions is that you must be habitually resident in this State.

I have decided that you do not satisfy the condition of being habitually resident in this State for the following reason(s):-

(1) Your length and continuity of residence in Ireland immediately prior to your claim for Jobseeker's Allowance does not provide for approval of your habitual residence in Ireland.

(2) You have lived all your life outside Ireland.

(3) Your centre of interest is not Ireland.

(4) You have no links or family ties in Ireland.

(5) Your immediate family do not reside in Ireland.

(6) You retain a bank account abroad.

(7) Your future intentions to remain in Ireland are short-term.

(8) You do not have an employment record in Ireland.

(9) From the evidence produced to-date there is nothing to substantiate that you are habitually resident in the State.'

The applicant was informed in the same letter that if he wished to send more documentary evidence or information relevant to the case, and considered the decision to be incorrect, the decision would be reviewed by a deciding officer. He was also informed that he could appeal the decision to an independent Social Welfare Appeals Officer within twenty-one days.

2 The applicant's solicitors sought a review of this decision under s. 301 of the Social Welfare Consolidation Act 2005 (as amended) on the following basis:-

'We say that our client, an EU National, is entitled to equal treatment particularly in relation to the social welfare rights of fellow jobseekers in this State. We say that in particular, our client is entitled to receive Jobseeker's Allowance in this State for a period of six months pursuant to Article 1 and Article 5 of Regulation 492/2011 (formerly Regulation 1612/68). We further say that the Habitual Residence Condition cannot be applied to our client's Jobseeker's Allowance application and that a Habitual Residence Condition is not a requirement for receipt of this payment. Furthermore, we say that s. 246 of the Social Welfare Consolidation Act 2005 (as amended) is incompatible with European Union law.'

The letter accepted that the applicant was 'obligated to provide evidence to your Department that he is genuinely seeking employment in this State' and sample applications for nine positions for which he had applied in the State were enclosed.

3 By letter dated the 10th March, 2014 the applicant was informed that his application seeking a revision of the earlier decision had been refused. The letter stated:-

'Mr. Macovei is exercising his freedom of movement as a EEA citizen while job seeking and residing in Ireland. EEA nationals who move in search of employment may benefit from equal treatment under Regulation 1612/68 in relation to employment on the basis of Article 7(2).

As Mr. Macovei has not had employment in Ireland, he must satisfy the Habitual Residence Condition in order to access the same social and tax advantages as national workers, Jobseeker's Allowance in this case.

Mr. Macovei made a claim for Jobseeker's Allowance on 5th February, 2014. The following was taken into account in reaching a decision in this case:

(1) Mr. Macovei stated he intended to remain in Ireland for a period of between three to five years.

(2) Mr. Macovei failed to secure employment in the State before travelling to Ireland on 10th January, 2014.

(3) Mr. Macovei has no history of previous employment in Ireland.

(4) Mr. Macovei has maintained a bank account in Romania.

(5) Mr. Macovei has no dependents in Ireland.

(6) Mr. Macovei failed to show that his main centre of interest is in Ireland.'

The decision maker then recites the previous decision and the reasons for same as set out in the letter of 11th February, 2014 and added:-

'I have revisited the case and as no new evidence has been presented, I am of the opinion that the original decision should stand as I see no grounds, within the information provided, to revise the decision.'

Mr. Macovei was also informed of a right to appeal this decision to an independent Social Welfare Appeals Office at no cost to himself.

4 The applicant secured a position of employment on the 27th February, 2014.

The Grounds

5 The main grounds relied upon by the applicant may be summarised as follows:-

(1) The respondent failed to apply the correct test in determining whether the applicant was entitled to Jobseeker's Allowance and in particular in applying the habitual residence test. The only question that might lawfully be considered in respect of the applicant's residence in the State when considering his entitlement to Jobseeker's Allowance was whether or not he had established genuine links with the employment market of the State and for a reasonable period had genuinely sought employment in the State. It was submitted that any residence based condition could only be applied insofar as it was required to establish that link.

(2) The applicant as a 'pre-active jobseeker' enjoyed favourable treatment which included a right to seek Jobseeker's Allowance for up to six months provided he had established a genuine link with the employment market of the State and for a longer period if he could establish that he continued to seek employment and had a genuine chance of being employed.

(3) The applicant derived a right to reside and remain in the State for the purpose of seeking to enter the labour market under Article 45(3) of the Treaty on the Functioning of the European Union (TFEU) and an entitlement to financial benefit such as Jobseeker's Allowance intended to facilitate access to employment under Article 45(2) TFEU and Articles 2 and 5 of Regulation 492/2011.

(4) There is no minimum period for habitual residence or a period of prior employment required in order to establish an entitlement to Jobseeker's Allowance under Regulation 492/2011 and Articles 18, 20 and 45 TFEU.

(5) A rebuttable presumption under s. 246(1) of the Social Welfare Consolidation 2005 (as amended) that a person who has not been present for two years in the State is not habitually resident in the State is contrary to and incompatible with European Union law which does not require a minimum or appreciable period of residence for the purpose of meeting the habitual residence test. In the alternative, the applicant claims that the provision unlawfully discriminates between Irish and non-Irish EU nationals and is not proportionate or objectively justified.

(6) The decision unlawfully took into account the failure of the applicant to secure employment before moving to the State and the absence of prior employment in the State.

(7) In the course of argument, though not specifically raised in the grounds upon which leave was granted, counsel for the applicant laid particular emphasis on the nature and purpose of Jobseeker's Allowance. It was submitted that if its purpose was to facilitate...