Tarola v Minister for Social Protection

• Jurisdiction: Ireland
• Judge: Mr. Justice Michael White
• Judgment Date: 18 March 2016
• Neutral Citation: [2016] IEHC 206
• Docket Number: [2015 No. 190 J.R.]
• Court: High Court
• Date: 18 March 2016

[2016] IEHC 206

THE HIGH COURT

JUDICIAL REVIEW

White Michael J.

[2015 No. 190 J.R.]

BETWEEN

NECULAI TAROLA

APPLICANT

AND

MINISTER FOR SOCIAL PROTECTION

RESPONDENT

Employment – Job seeker allowance – Art. 7 (3) (c) of the Directive 2004/38/EC – European Communities (Free Movement of Persons) (No. 2) Regulations 2006) – Habitual residence – The Social Welfare Consolidation Act 2005

Facts: The applicant sought an order of certiorari for quashing the decision of the respondent refusing "jobseeker allowance" on the basis that the applicant being an EU/EEA national needed to work for more than a year in the State of Ireland as required by the European Communities (Free Movement of Persons) (No. 2) Regulations 2006). The applicant contended that by virtue of s. 6 (2) (c) (iii) of the said Regulations of 2006, which was transposed by art. 7 (3) (c) of the European Directive 2004/38/EC, he was entitled for jobseeker's allowance as he fulfilled the conditions set out therein.

Mr. Justice Michael White refused to grant an order of certiorari to the applicant. The Court held that relatively short periods of employment, casual and part-time employment, would qualify an applicant for social welfare payments subject to the condition that it was in pursuance of a genuine activity and not an ancillary activity. The Court found that the applicant would not qualify as a worker under s. 6 (2) (c) (iii) of the 2006 Regulations as he failed to fulfil the condition of completion of a fixed-term employment contract of less than a year. The Court found that since the applicant had worked with a company for two weeks in July and given the fact that he was a casual employer who worked infrequently, the applicant's employment could not be treated as fixed-term employment. The Court observed that the applicant could avail the benefit of allowance under s. 6 (2) (c) (ii) of the 2006 Regulations if he was in established continuous employment for more than one year prior to applying for assistance, which the applicant failed to prove.

JUDGMENT delivered by Mr. Justice Michael White on the 18th March 2016

1 By order of leave of 13th April, 2015, the applicant was granted leave to apply by way of an application for judicial review for the following reliefs:-

(i) An order of certiorari quashing the decision of the respondent of 31st March, 2015.

(ii) A declaration that the respondent erred in law and in fact in the decision of 31st March, 2015 in determining that the applicant was required to be employed for more than twelve months and of sufficient independent resources to support himself in order to qualify for job seekers allowance, in the premises that the applicant having been employed for two weeks, retained the status of worker and thereby a right to reside, for a period of not less than six months, pursuant to Article 7(3)(c) of Directive 2004/38 (transposed into Irish law as Article 6(2)(c)(iii) and 6(2)(d) of the European Communities (Free Movement of Persons)(No. 2)( S.I. 656 of 2006)).

(iii) A declaration that the decision of the respondent of 31st March, 2015, is contrary to EU law, national law and the ECHR.

(iv) An order pursuant to O. 84, r. 26(4) of the Rules of the Superior Courts, remitting the matter to the first respondent with a direction to reconsider it and reach a decision in accordance with the findings of this Honourable Court.

2 The applicant duly issued a motion on foot of the order for leave on 25th April, 2015, returnable for 8th June, 2015.

3 In the statement of opposition of the respondent, it pleads that the applicant has not sought any relief in respect of the original decision of 26th November, 2014, to refuse the applicant job seekers allowance and was thus out of time to seek judicial review in respect of that decision in accordance with the provisions of O. 84, r. 21 of the Rules of the Superior Courts. The respondent also denies that the applicant was entitled to any relief in his substantive application.

4 The applicant is a citizen of Romania and by law a citizen of the European Union. He is 56 years of age.

5 He first arrived in this State in 2007.

6 His record of employment in the State as an employee is as follows:-

5th Jul, 2007 – 30th Jul, 2007....Employed by Condor Recruitment Limited

15th Aug, 2007 – 14th Sept, 2007....Employed by DAR Golf Construction Limited

22nd Jul, 2013 – 24th Sept, 2013....Employed ASF Recruitment Limited

8th Jul, 2014 – 22nd Jul, 2014....Marren Brothers Limited

7 The applicant also worked as a self employed subcontractor from 17th November, 2014, to 5th December, 2014, the principal contractor being Sapele Construction Limited.

8 The applicant in his grounding affidavit sworn on 7th April, 2015, states that since 2008, he had been in intermittent employment but the employers did not pay any tax on his employment and that he was also relying on charity and the support of family and, in particular on the Capuchin Day Centre over a period of seven years.

9 The applicant made a number of applications for social assistance on 21st September, 2013, he applied for a job seekers payment. That application was disallowed because he was not habitually resident in the State. He failed to produce evidence of residency or means of support from 15th September, 2007 to 22nd July, 2013.

10 The applicant applied for a supplementary welfare allowance from 26th November, 2013 and was asked for supporting documentation as to how he supported himself and paid rent from September 2013 to 14th April, 2014 and was unable to supply supporting documentation. His application for supplementary welfare allowance was refused under Statutory Instrument 412/2007, Part 5, Articles 19 and 20 which related to the requirement that claimants supply information and adequate supporting documentation.

11 By application form of 6th November, 2014, the applicant sought job seekers allowance for a second time. His application was refused on 26th November, 2014.

12 The reason for the refusal of job seekers allowance was that as an EU/EEA national, his residency in the State was governed by EU law ( S.I. No. 656 of 2006 – European Communities (Free Movement of Persons)(No. 2) Regulations 2006). Since he came to Ireland, he has not worked for more than a year and does not have sufficient independent resources to support himself and that the evidence produced does not substantiate his habitual residence in the State and led the respondent to conclude that his centre of interest was not Ireland.

13 By letter from his then solicitors, Nahoi & Company, he sought a review of the decision of 26th November, 2014, pursuant to s. 301 of the Social Welfare Consolidation Act 2005, as amended.

14 The refusal was reviewed and by letter of 16th December, 2014, the respondent wrote to his solicitor and stated:-

'I have reviewed the decision of 26th November, 2014, under s. 301 of the Social Welfare Consolidation Act 2005, as requested.

Mr. Tarola initially applied for job seekers allowance in September 2013. His application was refused as the deciding officer found that he was not habitually resident in the State. Mr. Tarola appealed that decision. The appeal was disallowed.

Mr. Tarola again applied for job seekers allowance in November 2014. The only difference in Mr. Tarola's circumstances between September 2013 and November 2014 was that he had worked for two weeks in July 2014. This short period of employment is not sufficient for a need to revise the decision of 26th November that Mr. Tarola is not habitually resident in the State.'

15 By further letter of 10th March, 2015, from Cristina Stamatescu, Solicitor, application was made again to review the decision of 26th November, 2014. It...