Razneas v Chief Appeals Officer
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 14 October 2022 |
| Neutral Citation | [2022] IECA 227 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record Number: 2021/86 |
and
[2022] IECA 227
Donnelly J.
Ní Raifeartaigh J.
Binchy J.
Court of Appeal Record Number: 2021/86
THE COURT OF APPEAL
CIVIL
Judicial review – Jobseeker’s Allowance – EU citizen – Appellants seeking the payment of Jobseeker’s Allowance to an EU citizen from another Member State – Whether s. 246(5) of the Social Welfare Consolidation Act 2005 is contrary to EU law
Facts: The second appellant, Ms Anghel, made an unsuccessful application for Jobseeker’s Allowance (JSA) and her subsequent appeal to an Appeals Officer was disallowed. She brought judicial review proceedings in respect of the latter decision and the reliefs were refused by the High Court (O’Regan J, [2020] IEHC 654). The appellants appealed to the Court of Appeal in respect of that decision. The following reliefs were the most pertinent of those sought by the appellants: (1) certiorari in relation to the decisions disallowing the appeal in respect of the refusal of the second appellant’s JSA; (2) various declarations that certain provisions, including s. 246(5) of the Social Welfare Consolidation Act 2005 are contrary to EU law; (3) declarations that certain sections of the 2005 Act are unconstitutional (s. 246(5), (6) and (7)); (4) a determination that the second appellant was a “worker” within the meaning of EU law; (5) a declaration that inter alia s. 246(5) of the 2005 Act is incompatible with the European Convention on Human Rights Act 2003 (s. 5); and (6) that the court make a preliminary reference to the Court of Justice of the European Union (CJEU) on certain points of law.
Held by Ní Raifeartaigh J that the JSA was, as the Court held in Munteanu v Minister for Social Protection, Ireland and the Attorney General [2019] IECA 236, a form of social assistance and not a measure intended to facilitate entry to the labour market. Accordingly, she upheld the decision of O’Regan J in that regard. Ní Raifeartaigh J held that the concept of a “worker” in EU law is a broad-ranging one, as shown by the authorities, but it is not sufficiently elastic so as to encompass the arrangement the second appellant had with the Mendicity Institution in April 2018. Ní Raifeartaigh J upheld the decision of the trial judge in that regard. Ní Raifeartaigh J was of the view that a reference to the CJEU would not be appropriate as no point of EU law required clarification. She held that there is no constitutional right for a national of another EU Member State to social assistance within Ireland; it was not a breach of the guarantee of equality to deny JSA to the second appellant because Irish citizens and persons with a right of residence within the State are not comparable to EU nationals who have no such right of residence. Ní Raifeartaigh J held that the appellants had failed to establish that the relevant provisions of the 2005 Act concerning the JSA in any way breach Article 40.1 of the Constitution. She was of the view that the appellants had failed to establish that the decision refusing JSA to the second appellant was in breach of Article 8 or Article 8 in combination with Article 14 of the Convention. Insofar as there is differentiation between Irish citizens and persons with a right of residence within the State, on the one hand, and EU nationals who have no such right of residence, Ní Raifeartaigh J held that no basis had been shown to suggest that this constitutes discrimination prohibited by the Convention; similarly, it had not been demonstrated that the denial of JSA to the second appellant in any way constitutes a breach of Article 8 within the meaning of the Convention jurisprudence. Ní Raifeartaigh J held that the appellants could not succeed in their claim that s. 246(5) is incompatible with the State’s obligations under the European Convention of Human Rights and its Protocols.
Ní Raifeartaigh J dismissed the appeal. Her provisional view was that the respondents were entitled to the costs of the appeal.
Appeal dismissed.
JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 14th day of October, 2022
This judgment concerns the payment of Jobseeker's Allowance to an EU citizen from another Member State. The case traverses much of the same territory as Munteanu v. Minister for Social Protection, Ireland and the Attorney General, in which judgments were delivered by the High Court (O'Malley J.) [2017] IEHC 161 and this Court (Peart J.) [2019] IECA 236, followed by a Supreme Court Determination refusing leave to appeal. The same issue was also addressed by the High Court (McDermott J.) in Macovei v. Minister for Social Protection [2017] IEHC 593, which applied the decision in Munteanu.
The appellant made an unsuccessful application for Jobseeker's Allowance (hereinafter ‘ JSA’) and her subsequent appeal to an Appeals Officer was disallowed. She brought judicial review proceedings in respect of the latter decision and the reliefs were refused by the High Court (see judgment of O’ Regan J., [2020] IEHC 654). This is an appeal in respect of that decision. For the avoidance of doubt, it should be said that the first appellant's claim in respect of disability allowance, which was dealt with in the High Court decision, has not been pursued on appeal.
The first and second appellants are Romanian nationals who have lived in Ireland since 2016. The first appellant has had significant health problems and is a double amputee, having undergone the first amputation in France and the second after his arrival in Ireland. This rendered him unfit for work. The second appellant is his wife and they have two young children, who are the third and fourth appellants. The second appellant spent a period of time doing some work with the Mendicity Institution during a particular period, of which further details will be given below. She completed a Jobseeker's form on the 17 July 2018 and a habitual residence form on the 27 July 2018. Her application was refused and her appeal against the allowance refusal was unsuccessful. Judicial Review proceedings were brought in respect of the appeal decision.
The following reliefs are the most pertinent of those sought by the appellants:
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(1) Certiorari in relation to the decisions disallowing the appeal in respect of the refusal of the second appellant's JSA;
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(2) Certiorari in relation to the decisions disallowing the appeal in respect of the first appellant's Disability allowance;
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(3) Various declarations that certain provisions, including Section 246(5) of the Social Welfare Consolidation Act 2005 (as inserted by Section 15 of the Social Welfare and Pensions (No. 2) Act 2009) are contrary to EU law;
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(4) Declarations that certain sections of the Social Welfare Consolidations Act 2005 are unconstitutional [s.246 (5), (6) and (7)];
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(5) A determination that the second appellant was a “worker” within the meaning of EU law;
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(6) Declaration that inter alia s.246(5) of the Social Welfare Consolidation Act 2005 (as amended) is incompatible with the European Convention on Human Rights Act 2003 (s. 5);
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(7) That the court make a preliminary reference to the Court of Justice of the European Union on certain points of law.
Most of the appellant's emphasis was upon the EU law points rather than those stemming from the Constitution or the European Convention on Human Rights.
The second appellant swore an affidavit in which she set out the family's difficult circumstances. Following the first appellant's amputation surgery, she realised that although she had always been the homemaker within the family, it was now necessary for her to consider seeking employment. This presented a number of challenges as she did not have good English, had no formal education and also had childcare responsibilities. She said that Ms. Wendy Moynan, a social worker at Tallaght Hospital where the first appellant had his surgery, assisted her in her search for employment. She was referred by Ms. Moynan to the Mendicity Institution and said it was agreed “that I would do a month in the workshop on an unpaid basis as a means to ensure that I had the capacity and commitment to move onto the Community Employment Scheme, which would have been on a paid basis”. She described her work in the workshop, saying that she was there for a month or so in April 2018 and was required to be there four days per week. She was doing copper craft, making decorative flowers and so on. She attended as required and very much enjoyed both the work and the social aspect of being in the workshop. She was not paid for her work during the period but was provided with meals each day. She was disappointed at the end of the work trial period to be informed that the Institution would not transfer her to the community employment scheme (hereinafter ‘CE scheme’) as she did not fit the profile of individuals who normally take part. She described her unsuccessful efforts to seek employment, including with a laundry service and a cleaning company. She then described her application for JSA, the refusal of the allowance, and her unsuccessful appeal in respect of that refusal.
She also described how the relationship with her brother-in-law, with whom they had been living, became extremely strained and how they were required to leave his house. They were then effectively homeless, which made it even more difficult to take up employment.
She said that they did not wish to return to Romania because it...
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