Court of Appeal refers case of Romanian man's entitlement to welfare benefits to Europe

By Ann O'Loughlin

A case by a Romanian man who has worked here for short periods has been referred by the Court of Appeal to the Court of Justice of the EU to decide iissues concerning his entitlement to welfare benefits.

The case concerns the proper interpretation of Article 7.3 of the Citizenship Directive, transposed into Irish law by the EC (Free Movement of Persons) Regulations of 2006.

The Directive and regulations set out the conditions under which a EU national exercising free movement rights is entitled to stay in a host country beyond an initial three-month period and be treated as a "worker" for all purposes, including welfare payments, by that host State.

The core issue for the CJEU is whether the fact the man was genuinely employed here for two weeks between July 8-22, 2014, entitled him to extend his residence as a worker in Ireland for at least a further six months such as to entitle him to welfare benefits on the same basis as an Irish citizen.

The 56-year-old man first came here in 2007 and was employed for two separate periods of 25 days and one month before he left in late 2007.

He returned in 2013 when he worked for about two months. In 2014, he was employed from July 8-22 and worked as a self-employed contractor from November 17 to December 5, 2014.

He was refused jobseeker’s allowance and supplementary welfare allowance in 2013 for reasons including failure to provide evidence of residency or means of support.

After being again refused jobseeker’s allowance in 2014, he sought judicial review of the Minister for Social Protection’s decision, since coming to Ireland, he had not worked for more than a year and his evidence was insufficient to establish Ireland as his habitual residence.

After the High Court rejected his claim that his July 2014, two-week employment was enough to bring him within the terms of Article 7.3 such as to entitle him to reside as a worker for a further six months with the effect he could claim benefits, he appealed.

Giving the judgment of the three-judge COA today, Mr Justice Gerard Hogan said the appeal centred on whether a person who has worked for less than 12 months retains their status as a “worker” for the purposes of Article 7.3, and, by extension, the 2006 regulations.

The Citizenship Directive represents a “careful balance” of a variety of social, economic and legal consequences but does not give EU citizens an unconditional right of residence in other member states, he said.

The CJEU has consistently taken a “broad view” of what constitutes a worker and has ruled the expression “worker” might cover persons who worked part-time and for less than the minimum wage. It had also held the motives for working in the relevant member state were irrelevant but the services provided must be real and not imagined or subsidiary.

The interpretations of Article 7.3 contended for by the man and the Minister have their own difficulties in relation to the Directive’s objective of striking a fair balance between safeguarding the free movement of workers and ensuring the social security systems of member states are not placed under unreasonable burdens, he said.

Given the variety of possible interpretations, absence of a definitive ruling on a very important aspect of the general law of free movement of workers and the fact there was no “straightforward” answer to the questions raised, the case for a reference to the CJEU was “obvious”, he ruled.

The court will hear the party's submissions on the draft question later this month before making the reference. The man’s appeal stands adjourned pending the CJEU decision.

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