Razneas v The Chief Appeals Officer

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Regan
• Judgment Date: 20 November 2020
• Neutral Citation: [2020] IEHC 654
• Date: 20 November 2020
• Docket Number: [No. 2019/168 JR]
• Court: High Court

IN THE MATTER OF THE CONSTITUTION OF IRELAND

AND

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

BETWEEN

IOAN RAZNEAS, ANISOARA ANGHEL, MARIAN RAZNEAS (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND ANISOARA ANGHEL),

AND

ANTONIA RAZNEAS (A MINOR SUING BY HER MOTHER AND NEXT FRIEND ANISOARA ANGHEL)

APPLICANTS

AND

THE CHIEF APPEALS OFFICER, THE MINISTER FOR EMPLOYMENT AFFAIRS AND SOCIAL PROTECTION,

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTY

[2020] IEHC 654

O'Regan

[No. 2019/168 JR]

THE HIGH COURT

Judicial review – Jobseeker’s allowance – Social Welfare Consolidation Act 2005 s. 246(5) – Applicants seeking judicial review – Whether s. 246(5) of the Social Welfare Consolidation Act 2005 is unconstitutional

Facts: The first respondent, the Chief Appeals Officer, in a decision of the 1st March, 2019, disallowed the appeal of the second applicant, Ms Anghel, against a decision of the 3rd August, 2018, refusing her Jobseeker’s Allowance. The Appeals Officer concluded that it had not been demonstrated that the second applicant had a right to reside in the State. On the 22nd March, 2019, the applicants applied to the High Court for judicial review seeking various reliefs arising as a consequence of the Appeals Officer’s decision. At the hearing of the claim the applicants identified the following four issues for consideration, which were accepted by the respondents: (a) the Jobseeker’s Allowance mentioned in s. 141 of the Social Welfare Consolidation Act 2005 (as amended) is a benefit of a financial nature intended to facilitate access to employment; (b) the second applicant claimed that she was a worker while engaged with the Mendicity Institution for a one-month period from in or about the 4th March, 2018; (c) s. 246(5) of the 2005 Act is unconstitutional in requiring an applicant for Jobseeker’s Allowance to have, at the relevant time, a right to reside in the State for the purposes of EU and national law; (d) in the further alternative it was claimed that s. 246(5) of the 2005 Act is incompatible with the European Convention on Human Rights Act 2003. The respondents filed a statement of opposition of the 19th June, 2019, resisting all relief.

Held by O’Regan J that: (a) this point had already been conclusively determined by the High Court and the Court of Appeal (having binding force) based on sound cogent reasoning that the Jobseeker’s Allowance is a special non-contributory cash benefit within the meaning of Articles 3 and 7 of Regulation 883/2004 and accordingly there was no necessity for a reference under Article 267 of the TFEU to the CJEU; (b) the impugned decision could not be considered irrational or contrary to law in finding that the second applicant’s attendance at the Mendicity Institution was more in the nature of a service user inter alia, as opposed to a worker; (c) the applicants failed to discharge the burden on them of the unlawfulness of s. 246(5) and therefore could not succeed in their challenge to the right of residence test provided by s. 246(5) of the 2005 Act under the Constitution; (d) the applicants failed to demonstrate that the impugned provision of the 2005 Act offends the provisions of the 2003 Act notwithstanding reference by the applicants to various judgments of the European Court of Human Rights requiring special consideration to be given to the needs of gypsies as a minority (without specifying the nature of the special consideration).

O’Regan J held that the reliefs sought by the applicants would be refused.

Reliefs refused.

JUDGMENT of Ms. Justice O'Regan delivered on the 20th day of November, 2020

Introduction

1 The applicants, parents and two infant children, have maintained proceedings by way of an application for judicial review of the 22nd of March, 2019, seeking various reliefs arising as a consequence of a decision of the first named respondent of the 1st of March, 2019.

2 At the hearing of the within claim the applicants identified the following four issues for consideration, which were accepted by the respondents (the notice party did not partake in the proceedings):

(a) the Jobseeker's Allowance mentioned in s.141 of the Social Welfare Consolidation Act 2005 (as amended) (hereinafter ‘the 2005 Act’) is a benefit of a financial nature intended to facilitate access to employment;

(b) the second named applicant claims that she was a worker while engaged with the Mendicity Institution for a one-month period from in or about the 4th of March, 2018;

(c) s.246(5) of the 2005 Act is unconstitutional in requiring an applicant for Jobseeker's Allowance to have, at the relevant time, a right to reside in the State for the purposes of EU and national law;

(d) in the further alternative it is claimed that s.246(5) of the 2005 Act is incompatible with the European Convention on Human Rights Act 2003 (ECHR Act 2003).

3 The respondents have filed a statement of opposition of the 19th of June, 2019. The respondents are resisting all relief.

4 The impugned decision is identified in a letter of the 1st of March, 2019, to the applicants' solicitor, to the effect that the appeal of the second named applicant against a decision of the 3rd of August, 2018, refusing her Jobseeker's Allowance, was disallowed. In the decision of the 3rd of August, 2018, the applicant was advised that she did not have habitual residence and she had not worked during her first 90 days of living in Ireland or since. The applicant was also advised that she did not have an employment record in Ireland and she did not submit any evidence that would substantiate habitual residence.

5 The above findings were appealed. However, on appeal the Appeal's Officer considered that the applicant's attendance at the Mendicity Institution did not afford her the status of a worker, and the applicant failed to produce evidence to support that the relevant work had been genuine and effective, or that the concept of a quid pro quo might have applied in the context of voluntary unpaid engagement or the activities undertaken during the placement. The Appeal's Officer concluded that it had not been demonstrated that the applicant had a right to reside in the State.

Nature of Jobseeker's Allowance

6 Section 246(5) of the 2005 Act 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.”

7 The issue as to whether or not Jobseeker's Allowance is a payment intended to facilitate access to the labour market or, alternatively, a special non-contributory cash benefit within the meaning of Article 3 and 70 of Regulation 883/2004 has already been the subject matter of judicial consideration in Munteanu v. Minister for Social Protection [2017] IEHC 161 (O'Malley J.) and in Macovei v. Minister for Social Protection [2017] IEHC 593 (McDermott J.) and more recently in the judgment of the Court of Appeal in respect of an appeal of the judgment of O'Malley J. aforesaid ( [2019] IECA 236). The Court of Appeal delivered judgment on the 31st of July, 2019.

8 In the High Court, in both matters aforesaid, the Court relied on C-333/13 Dano v. Jobcenter Leipzig, a decision of the Court of Justice of the European Union (hereinafter CJEU). Paragraph 82 thereof states:

“82. Accordingly, Article 24(1) of Directive 2004/38, read in conjunction with Article 7(1)(b) thereof, does not preclude national legislation such as that at issue in the main proceedings insofar as it excludes nationals of other Member States who do not have a right of residence under Directive 2004/38 in the host Member State from entitlement to certain ‘special non-contributory cash benefits’ within the meaning of Article 70(2) of Regulation No. 883/2004.”

9 Both courts held that Jobseeker's Allowance was a special non-contributory cash benefit as opposed to an allowance intended to facilitate access to the labour market as contended for.

10 In the Court of Appeal, Peart J. quoted extensively from the judgment of O'Malley J. including at para. 17:

“115. Neither the directive nor the regulation preclude national legislation that makes entitlement to a social security benefit conditional upon the claimant having a lawful right to reside in the host State ( Brey, Dano, Commission v. United Kingdom) …

121. The requirement of a right to reside constitutes indirect discrimination. As such, it must be appropriate for securing the attainment of a legitimate objective and cannot go beyond what is necessary to attain that objective …

124. Jobseeker's Allowance is a special non-contributory cash benefit within the meaning of Articles 3 and 70 of the Regulation …

126. The conditions for eligibility for Jobseeker's Allowance are therefore solely a matter for national legislation.”

11 At para. 44 of the judgment of the Court of Appeal it was stated:

“In my view, the trial judge was correct to conclude, as she did for reasons set forth at para. 124 of her judgment, that Jobseeker's Allowance is a special non-contributory cash benefit within the meaning of Articles 3 and 70 of the Regulation, and that the regulation applied, and that it may therefore be subject to an habitual residence requirement which itself depends on their being a right of residence.”

12 The applicants argue that the Court of Appeal might well have made a reference under Article 267 of the Treaty on the Functioning of the European Union (TFEU) to the CJEU on this point, if the applicant in the case before it had given evidence of being a jobseeker. In the instant matter it is argued that the second named applicant was a jobseeker and therefore urged that a reference to Europe would be made on the issue of whether or not the Jobseeker's Allowance aforesaid is a benefit of a financial nature intended to facilitate access to employment.

13 The...