Mocanu v The Chief Appeals Officer

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 23 September 2022
• Neutral Citation: [2022] IEHC 577
• Docket Number: RECORD NO. 2021/74/MCA

Between

Cornelia Mocanu

Appellant

and

The Chief Appeals Officer

and

Social Welfare Appeals Office

Respondents

[2022] IEHC 577

RECORD NO. 2021/74/MCA

THE HIGH COURT

State pension – Right of residence – Dependency – Appellant seeking to challenge a decision to refuse an application for a non-contributory state pension – Whether the appellant had a right to reside in the State

Facts: The appellant, Ms Mocanu, appealed to the High Court seeking to challenge a decision of the Appeals Officer of the second respondent, the Social Welfare Appeals Office, to refuse an application for the State Pension (Non-Contributory) on the basis that the appellant did not have a right to reside in the State. The central dispute between the parties concerned whether, as a matter of EU law, the appellant, who came from Romania to join her daughter in Ireland, was required to be dependent on her daughter in Romania (the home country) to obtain a right of residence, or whether dependency in Ireland (the host country) was sufficient. There were two principal issues between the parties in the appeal. The first was the preliminary objection of the respondents that the appeal was brought out of time having regard to Order 84C, Rule 2(5)(a) of the Rules of the Superior Courts. The appellant accepted that she was out of time but sought an extension of time. The second was the substantive ground of appeal pursued by the appellant that there was no requirement as a matter of EU law that the appellant should have to provide evidence of dependency prior to her entry into the State.

Held by Hyland J that no extension of time should be granted in this case. She placed particular emphasis on the fact that the delay was very significant, having regard to the 21-day time period and that no justifiable excuse had been provided in her view. She held that where the legislature has made a policy decision to set very short limitation periods, as it had done in this case, it would undermine those limitation periods were she to ignore the significant delay in the case and to grant an extension of time despite the lack of a substantive excuse. Despite her conclusion that no extension of time should be granted, she decided the substantive issue in case she was incorrect in that conclusion. She held that Case C-423/12 Reyes v Migrationsverket (ECLI:EU:C:2014:16) is an authoritative statement of the law by the CJEU on when dependency must be assessed, by which she was bound. Having regard to the case law of the CJEU, she was satisfied that the correct interpretation of dependency in EU law requires that the dependent relative must have been dependent in the home country prior to joining the person exercising free movement rights; a person who becomes dependent only after they arrive in the host Member State is not considered to be dependent within the meaning of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 (the Citizenship Directive), as interpreted by the CJEU. Hyland J held that as the appellant accepted that she was not dependent upon her daughter until after she came to Ireland, she must fail in her appeal against the decision of the respondent that she did not have a right to reside in the State and was not therefore entitled to a non-contributory pension.

Hyland J held that the appellant’s case must fail, as must her application for a reference. Hyland J held that the case law from the CJEU is absolutely clear in respect of the question as to when dependence is to be evaluated; where a question is acte clair, there is no basis for a reference. She dismissed the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 23 September 2022

Summary

1 These proceedings seek to challenge a decision of the Appeals Officer of the second respondent to refuse an application for the State Pension (Non-Contributory) (the “pension”) on the basis that the appellant did not have a right to reside in the State. The central dispute between the parties concerns whether, as a matter of EU law, the appellant, who came from Romania to join her daughter in Ireland, was required to be dependent on her daughter in Romania (the “home country”) to obtain a right of residence, or whether dependency in Ireland (“the host country”) is sufficient.

2 Having regard to the case law of the CJEU on this question, I am quite satisfied that the correct interpretation of dependency in EU law requires that the dependent relative must have been dependent in the home country prior to joining the person exercising free movement rights. A person who becomes dependent only after they arrive in the host Member State is not considered to be dependent within the meaning of the Citizenship Directive, as interpreted by the CJEU.

3 As the appellant accepts that she was not dependent upon her daughter until after she came to Ireland, she must fail in her appeal against the decision of the respondent that she does not have a right to reside in the State and is not therefore entitled to a non-contributory pension.

Facts and background

4 The appellant is a Romanian national who has resided in the State since in or around 12 October 2011. The appellant resides with, and is dependent upon, her adult daughter who is a Romanian citizen living and working in this State.

5 The appellant, having reached retirement age, made an application for a non-contributory state pension which the respondent recorded as received on 15 January 2020. Subsequently, the appellant was asked, inter alia, to complete a Habitual Residence Condition form and a Social Welfare Inspector was appointed to investigate the application.

6 The Inspector provided a report to the department on 19 March 2020 and, in a Decision Letter dated 23 March 2020, the Deciding Officer refused the application on the basis of, inter alia, a finding that the appellant had failed to prove a right of residence in the State. An appeal was lodged on 30 March 2020. On 18 June 2020, in accordance with a request pursuant to Article 10 of the Social Welfare (Appeals) Regulations 1998, the appeals office was provided with a statement from the Deciding Officer setting out the extent to which the Deciding Officer accepted or rejected the facts and contentions of the appellant.

7 By way of letter dated 13 November 2020 the Appeals Officer wrote to the appellant setting out a summary of the evidence and the issues arising on appeal. The Appeals Officer invited her to correct or refute any part of the content of the summary provided or to submit any further evidence. On 24 November 2020 the appellant provided further documentation by way of email.

8 In a decision dated 8 January 2021, the Appeals Officer upheld the Deciding Officer's finding that the appellant had not established a right to reside in the State as a dependent. The decision summarised the evidence as follows:

“3. The Appellant was aged 65 at the time of the application, she is a Romanian national and her Spouse and Son live in Romania. Weekly pensions of €25.50 and €58 are payable to the Appellant and her Spouse respectively. The Appellant states that she worked in Romania to support herself. Ownership of an apartment in Constanta in Romania is advised. The Appellant's Spouse lives in this apartment.

The Appellant states she has not left Ireland since her arrival. The Appellant has stated that she has lived with and been supported by, her daughter since 2011. No evidence of pre-dependence in Romania is advised. The Appellant states that she supported herself in Romania by working. The Appellant has responded negatively in relation to whether or not she had the necessary permissions to reside in Ireland since 2011. An Account with PTSB ending ***725 is advised. Employment and self-employment are denied. The Appellant had lived all her life in Romania prior to her arrival in Ireland in October 2011. The Appellant is stated to have supported herself in Romania by working. The Appellant's Spouse, son, and siblings, two sisters and one brother, reside in Romania. There are no plans for family re-unification and the Appellant has indicated to live in Ireland “forever” [sic].

9 The decision then goes on to analyse the question of a right to reside, noting:

“…The [European Communities (Free movement of Persons) Regulations 2015] provide in Regulation 6(5) for an EU citizen to derive a right to reside in another Member State from another family member, provided they inter alia, are a direct family member in the ascending line, of an EU citizen exercising EU Treaty rights. In this case this would be the Appellant's daughter who is working in Ireland since at least 2011. However, in order to establish this right the Appellant must demonstrate pre-dependency in her country of origin and continued dependence in Ireland. Furthermore, such a right is conditional on continued employment by the employed EU Citizen. The evidence on file has not established such a pre-dependency existed between the Appellant and her daughter prior to the former's arrival in Ireland. On the contrary the Appellant has stated that she supported herself by working. Additionally, the Appellant was living with her Spouse in their privately owned apartment.”.

10 The Appeals Officer went on to conclude that the appellant had “ failed to establish a right to reside which would entitle her to receive a social assistance payment such as State Pensions Non-Contributory”. The appellant is appealing this decision in accordance with s.327 of the Social Welfare (Consolidation) Act 2005 (the “2005 Act”).

Proceedings

11 An originating Notice of Motion of 7 April 2021 was issued grounded upon an affidavit of Ms. Sinnott of Sinnott Solicitors of 2 April 2021. A verifying affidavit by Ms. Mocanu was sworn on the same day. A further affidavit was sworn by Ms. Mocanu on 22 June 2021. The respondent filed points of...