Munteanu v Minister for Social Protection

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 31 July 2019
• Neutral Citation: [2019] IECA 236
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2017/157,[C.A. No. 157 of 2017]
• Date: 31 July 2019

BETWEEN:

LOTI MUNTEANU

APPLICANT/APPELLANT

- AND-

MINISTER FOR SOCIAL PROTECTION, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2019] IECA 236

Peart J.

Peart J.

Edwards J.

McGovern J.

Record Number: 2017/157

THE COURT OF APPEAL

Asylum & immigration – EU citizen – Applications for social welfare payments – Application for judicial review of refusals

Facts: The appellant was a Romanian national and EU citizen. She claimed that she had been the subject of discrimination due to her Roma background, and came to Ireland. She contended she was a jobseeker and according had a right to reside and entitlement to certain social welfare payments. The applications for welfare had been refused and the High Court had refused her application for reliefs. The matter now came on appeal.

Held by Peart J, that the appeal would be dismissed. The appellant had not shown that the trial judge had been incorrect in holding that the appellant had not established a right to reside or that the Minister had properly assessed her circumstances. The decision of the High Court would be upheld.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 31ST DAY OF JULY, 2019

1 This is an appeal against an order made by the High Court (O'Malley J.) on the 15th March 2017 refusing the appellant's application for reliefs by way of judicial review of certain decisions made by the Minister disallowing her applications for Child Benefit, Jobseeker's Allowance and Supplementary Welfare Allowance.

2 The trial judge gave her reasons for declining to grant these reliefs in a written judgment delivered on the 3rd March 2017 ( [2017] IEHC 161).

3 The appellant's applications for these benefits were each refused on the basis that she could not be considered to be habitually resident in the State, as she had not established a right to reside in the State having regard to Directive 2004/38/EC (‘the 2004 Directive’) and/or the European Communities (Free Movement of Persons) (No.2) Regulations 2006 ( S.I. No. 656 of 2006) as amended (the ‘2006 Regulations’).

4 Section 246 (5) of the Social Welfare Consolidation Act, 2005 provides:

‘A person who does not have the right to reside in the State, shall not, for the purposes of the Act, be regarded as habitually resident in the State’.

5 The Minister concluded, as explained in a letter dated 20th October 2014 that, as provided by s. 246 of the 2005 Act, the appellant could not be considered to be habitually resident in the State where she had not established a right to reside here, because (a) she is not employed or self-employed; (b) she does not have comprehensive health insurance for her and her family, nor sufficient resources to support herself and her family; (c) she is not a student, and does not have comprehensive sickness cover for herself and her dependents, being the requirements for a right of residence in another member state for a period in excess of three months as provided by S.I. 656/2006.

6 The appellant contends on the other hand that at the relevant time she was a jobseeker, and as such, she had a right to reside which derives directly from Article 45 (2) TFEU and Articles 2 and 5 of Regulation (EU) No. 492/2011. It is argued that Jobseeker's Allowance is a payment that is intended to facilitate access to the labour market, or at least that this is its predominant purpose, as well as to provide social assistance, and is not solely a payment by way of social assistance, as the Minister contends.

7 In relation to the refusal of Supplementary Welfare Allowance, it is contended that the Minister misapplied the unreasonable burden test, and that until such time as a proper individual assessment was carried out and a lawful decision made that she is an unreasonable burden on the State, she is entitled to receive that allowance. In this regard it has been submitted that the applicable test is that set out in Case C- 140/12 Pensionsversicherungsanstalt v. Brey (‘Brey’). In so far as in certain later cases ( e.g. Dano, Alimanovic, and Garcia-Nieto) the CJEU has found that no such individual assessment is required, the appellant submits that the particular circumstances pertaining in those cases distinguish them from the appellant's case.

8 Before proceeding further with the issues on this appeal, a brief factual background should be set out.

9 The appellant is a citizen of Romania and therefore an EU citizen. She is a member of the Roma community. In her grounding affidavit sworn on the 14th November 2014 she states that she came to this State in the year 2008 with her partner and two young children for economic reasons, and to escape discrimination in Romania. She wished to make a better life here for herself and her family. She states that she survived here economically from the time of her arrival by selling the Big Issue magazine as an unregistered self-employed person, as well as by begging and receiving charitable support by way of food vouchers.

10 She went on to state that apart from some “exceptional needs payments” (for which a right to reside in the State is not a requirement) she has not been in receipt of social assistance from the State. She has had difficulties with the housing accommodation provided to her in Waterford and was forced to leave that location because of local aggressive opposition, and move to another location.

11 According to information that the appellant herself provided, she ceased selling the Big Issue in or around August 2013. Just over one year later on the 5th September 2014 she completed a Form UP1 in order to claim Jobseeker's Allowance in which she stated that she was not in any employment at that date, and nor was self-employed. She did not complete that part of the form which asks certain questions as to the nature of the work she was seeking, her availability for work, the number of hours that she would accept, and details and evidence of efforts she might have made to obtain work. Nevertheless, at part 9 of the UP1 Form she declared that (a) she is unemployed and unable to get suitable full-time work; (b) she is capable of, available for, and genuinely seeking work; (c) she has not claimed, nor is she receiving, any other benefits, pension or allowance from any source apart from those shown in the form; and (d) she will notify the Department if she gets work. She declared also that this information is truthful and complete, and that she understands that if any of the information provided by her is untrue or misleading, or if she fails to disclose any relevant information, she would be required to repay any payment she might receive from the Department, and further that she might be prosecuted.

12 The Minister concluded that on the basis of the information that she herself provided, she had not established a right to reside in the State, and therefore could not be considered to be habitually resident here. The appellant draws attention to the fact that in her decision to refuse Jobseeker's Allowance, the Minister made no finding of fact that the appellant is not a jobseeker, the point being that if the appellant was at the time a jobseeker then she was not required to establish a right to reside for the purpose of satisfying the habitual residence requirement.

13 The decision to refuse her application for Supplementary Welfare Assistance was made for the following reasons, as appears from the letter dated 12th November 2014 from the Department:

‘The basis for this decision is the following:

You do not have the right to reside in the State

The circumstances under which a European Citizen retains the right to reside in Ireland for longer than 3 months are legislated for in the European Communities (Free Movement of Persons) No. 2 Regulations 2006, otherwise known as S.I. 656 of 2006.

You are not habitually resident in the State

The basis for this decision is Social Welfare (Consolidation) Act, 2005, as amended by s. 15 of Social Welfare & Pensions Act (No. 2) 2009 which provides as follows:

‘A person who does not have a right to reside in the State shall not, for the purposes of this Act, be regarded as being habitually resident in the State’.

If however, you can provide other documentary evidence to prove your right to reside in the State, I will be happy to review this decision and am sorry this decision could not be more favourable.’ [Emphasis in original]

14 The invitation extended in the final paragraph just quoted was not taken up by the appellant, although a letter was received from her solicitors dated 18th November 2014 seeking a revision of the decision pursuant to s. 224 of the Social Welfare Consolidation Act 2005. In this letter, the solicitors for the appellant made the following submission:

‘In respect of Supplementary Welfare Allowance and other social assistance payments, where a claimant does not have or no longer retains worker status, the appropriate test to be applied is a consideration of the claimant's overall circumstances and the application of a proportionality test to determine if the claimant has become an unreasonable burden on the social assistance system as a whole and not the application of a habitual residence test. The right to reside test which automatically excludes claimants from social welfare is wholly contrary to EU law. As an emanation of the State, your Department is under the same obligations as a national court to dis-apply conflicting provisions of national law.’ [Emphasis in original]

15 As for the rejection of the application for Child Benefit, it is unnecessary to address that particular ground, as counsel for the appellant has in fairness accepted, as found by the trial judge, that the ground sought to be relied upon was not one of the grounds on which leave to seek judicial review was granted. He does make the point that submissions were made on the issue in the High Court, and submits that a flexible attitude...