Solovastru v Min for Social Protection and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 09 June 2011
• Neutral Citation: [2011] IEHC 532
• Docket Number: [No. 1331 J.R./2010]
• Court: High Court
• Date: 09 June 2011

[2011] IEHC 532

THE HIGH COURT

[No. 1331 J.R./2010]

Solovastru v Min for Social Protection & Ors

JUDICIAL REVIEW

BETWEEN

PETRU SOLOVASTRU AND AURICA SOLOVASTRU

APPLICANTS

AND

THE MINISTER FOR SOCIAL PROTECTION, SOCIAL WELFARE APPEALS OFFICE, THE HEALTH SERVICE EXECUTIVE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

SOCIAL CONSOLIDATION ACT 2005 S 219

SOCIAL CONSOLIDATION ACT 2005 S 220

O.84 r21(1)

SOCIAL WELFARE CONSOLIDATION ACT 2005 S140

DE ROISTE v MINISTER FOR DEFENCE 2001 1 IR 190

RSC O.84. r21

DEKRA EIREANN v MINISTER FOR ENVIRONMENT 2003 2 ILRM 270

SOCIAL WELFARE CONSOLIDATION ACT 2005 S141

TREATY CONCERNING THE ACCESSION OF THE REPUBLIC OF BULGARIA & ROMANIA TO THE EUROPEAN UNION OJL 157/11 21.6.2005 ANNEX VII

SOCIAL WELFARE CONSOLIDATION ACT 2005 S246

SOCIAL WELFARE & PENSIONS (NO2) ACT S15

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REGS 2006 SI 656/2006 REG 6(1)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REGS 2006 SI 656/2006 REG 7(3)

DIRECTIVE 2004/38EC ART 14

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REGS 2006 SI 656/2006 REG 11(1)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REGS 2006 SI 656/2006 REG 2A(1)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REGS 2006 SI 656/2006 S246 REG 6(2)(C )(II)

R (TILIANU) v SECRETARY OF STATE FOR WORK AND PENSIONS 2010 EWCA CIV 1397

EEC DIR 2004/38 ART 7 (3)B

ALLONBY v ACCRINGTON & ROSSENDALE COLLEGE 2004 ICR 1328 (ECJ) 67

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REG 2006 SI 656 2006 7(3)C

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION TITLE IV CHAP 1

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION TITLE IV CHAP 2

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 45(1)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 48

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 49

B(I) v MIN FOR JUSTICE & ORS UNREP COOKE 15.10.2009 2009/4/920

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REGS 2006 SI 656/2006 S246 REG 6(2)(D)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REGS 2006 SI 656/ 2006 S246 REG 6(2)(C) (III)

TILANU v SECRETARY OF STATE FOR WORK & PENSIONS UNREP SYMONS 19.1.2010 2010 EWHC 213

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 39

Ms. Justice Dunne

1 The applicants herein are Romanian nationals and citizens of the European Union, The first named applicant herein seeks to judicially review a number of decisions in relation to his applications for jobseekers allowance, supplementary welfare allowance and rent supplement and the second named applicant seeks to judicially review the decision in relation to her application in respect of child benefit.

Background

2 The first named applicant herein swore an affidavit on the 18^th October, 2010, verifying the statement required to ground the application for judicial review herein, In that affidavit he stated that the arrived into the State in September, 2004, and sought employment. He worked as a carpenter. He says that he was paid in cash. It appears that he did not pay any tax in relation to his employment at this time. He went on to say that from the 1^st September, 2006 to April 2007, he worked for a different company. He said that he was not aware that a work permit was required to work in the State. He said that tax and PRSI in relation to his earnings in this employment was duly returned to the Revenue Commissioners. To that extent he has exhibited a number of payslips and a P60 in respect of the year ended the 31^st December, 2006, He then stated that he subsequently worked between the 1^st May, 2007, until the 11^th November, 2008, in a self employed capacity as a metal fixer for David and Paul Matthews trading as DPM Partitioners. He said that all tax, VAT and PRSI in respect of his earnings during that period was duly returned to the Revenue Commissioners by DPM Partitioners on his behalf. He has referred to a number of documents from the Revenue Commissioners in that regard. A letter of 16^th April, 2009, was exhibited from the Revenue Commissioners which stated that:-

"As per Revenue Commissioners records, the above named is registered as self employed from 01/05/2007 to 11/11/2008."

3 Mr. Joseph McGloin, Superintendent Community Welfare Officer, swore a number of affidavits herein on behalf of the respondents. In his affidavit sworn herein on the 5^th January, 2011, Mr. McGloin commented that there was no evidence referred to in the affidavit of the first named applicant, to support his assertions as to his employment as a carpenter in the first instance and then subsequently with a second company during the year 2006. He went on to add that there was no evidence that the first named applicant had any lawful permission to enter and reside In the State at that time. There is some evidence before the court to show that the first named applicant was in fact employed by the second company referred to by the first named applicant in his affidavit during the year ended the 31^st December, 2006, but Mr. McGloin is correct in. saying that there is no evidence that the first named applicant had any lawful permission to enter and reside in the State at that time. It is unequivocally the case that the first named applicant's presence in the State prior to the 1^st January, 2007, was unlawful. He had no permission to enter or to reside in the State or to work in the State prior to that date. Romania joined the EU on that date and thus the applicants, as citizens of Romania, became citizens of the European Union. The entitlement of EU citizens to enter and reside in this jurisdiction is governed by EU law and by national law. I should add that the second named applicant stated in an affidavit sworn by her on the 15^th October, 2010 that she came to this state with her then three children on the 2^nd February, 2007. A. further three children were born in Ireland.

The Decisions under Challenge

4 A number of decisions have been challenged in these proceedings. All of the decisions concerned relate to benefits or allowances payable under the social welfare system. The first is a decision in relation to an application by the first named applicant for jobseekers allowance. That application was refused on the 28^th August, 2009. The first named applicant appealed that decision and the appeal was rejected by a letter dated the 12^th May, 2010. As a result of that decision, a review took place in respect of the first named applicant's supplementary welfare allowance and rent supplement payments by the third named respondent (HSE). The first named applicant was advised by letter dated the 8^th June, 2010, that he did not meet the requirement for such a payment. The final decision which is the subject of challenge in these proceedings relates to an application by the second named defendant in respect of child benefit. A decision was made in regard to that application refusing same on the 6^th April, 2009.

Delay in Seeking Judicial Review

5 The respondents herein have complained that the applicants have failed to act promptly in bringing their applications for judicial review on the basis that leave to apply for judicial review was obtained oil the 18^th October, 2010, in respect of the decisions of the 28^th August, 2009, the 12^th May, 2010, the 6^th April, 2009 and the 8^th June, 2010. It is the respondents case that there are no grounds for extending the time in which to apply for judicial review. The applicants sought to pre-empt the issue of delay by reference to correspondence which looked for a revision of the decisions of the respondents and demanded a response by the 12^th October, 2010. I think it would be helpful to quote from a letter addressed to the first named respondent which contained the following paragraph:-

"In circumstances where there is great urgency in the case, we ask that you respond to us not later than Tuesday the 12^th October, 2010. We further say that in the event that you fail to respond or your response is a refusal to reverse the decision and pay to our client jobseekers allowance, we will, without further notice to you, attend the ex parte list on Wednesday 13^th October, 2010, in the High Court to seek leave for judicial review and this letter will be used to fix you with costs."

6 A letter was sent to the second named respondent which also contained a similar paragraph. The applicants sought leave to extend the time in which to bring the application if necessary. It is relevant to note at this point that all of the decisions at issue in these proceedings are the subject of appeals within the social welfare system. It appears that those appeals have now been deferred at the request of the applicants. Thus, the issue of delay is a live issue between the parties in this case. There is a question as to whether it is appropriate to deal with the matter by way of judicial review in circumstances where the applicants have pursued appeals from the decisions complained of.

7 When the application for leave was made a number of reliefs sought in the statement required to ground the application for judicial review. They consisted of applications for orders ofcertiorari, declarations and in addition a number of orders of mandamus. For example, one of the reliefs sought was as follows:-

"An order ofcertiorari quashing the decision, by way of refusal and/or failure, of the second named respondent of, on or about the 12^th October, 2010, to provide child benefit payment to the first named applicant, pursuant to ss. 219 to 220 Social Consolidation Act 2005."

8 A number of the reliefs were in relation to decisions stated to have been made on or about the 12^th October, 2010. Other dates were referred to elsewhere in the course of the statement required to ground the application for judicial review. During the course of the argument on the issue of delay, it was...