#Open journalism No news is bad news

Your contributions will help us continue to deliver the stories that are important to you

Support The Journal
Dublin: 1°C Friday 4 December 2020
Advertisement

Dependents of EU citizens entitled to claim social welfare benefits, High Court rules

The judgement could allow thousands of dependents of non-Irish EU nationals living in the Republic to claim benefits.

DEPENDENT RELATIVES OF EU citizens are entitled to receive social welfare payments after living in Ireland for more than three months even though they are not working themselves, the High Court has ruled.

The judgement could clear the way for several thousand dependents of non-Irish EU nationals living in the Republic to claim social welfare benefits as long as they meet the same qualifying criteria as Irish citizens.

It follows a recent ruling by Mr Justice Garrett Simons that domestic regulations were inconsistent with EU legislation by requiring dependent relatives of migrant workers not to be an “unreasonable burden” on the State.

Romanian national, Georgeta Voican, who has been living with her daughter, Angelica, in Ireland since 2017, had sought a judicial review of the decision of the Chief Appeals Officer, the Social Welfare Appeals Office and the Department of Employment Affairs and Social Protection to refuse her claim for disability allowance.

The judge said the State’s welfare authorities had “mistakenly sought to pigeon-hole the mother as an economically inactive citizen, rather than as a dependent family member,”

Welcoming the High Court’s findings, Migrants Rights Centre Ireland said it represented “a sensible and favourable decision.”

MRCI spokesperson Karina Korotkevica said the ruling highlighted how the practice followed by the Department of Employment Affairs and Social Protection was not in line with the EU Citizenship Directive.

“Migrant workers’ dependent family members were technically discriminated against on the grounds of their nationality when trying to access social assistance, such as disability allowance, which had a right to reside condition attached to it unfairly” said Korotkevica.

Lawyers for the State had argued that Voican’s right to reside in Ireland relied on her dependence on her daughter to be ongoing and continuing.

They said Voican would become financially dependent on the State instead of her daughter if she was entitled to receive disability allowance.

They pointed out that Irish legislation which gives effect to the EU Citizenship Directive expressly provides that the right of residence is contingent on the person not becoming an “unreasonable burden” on the State’s social welfare system.

Voican claimed the Irish regulations represent an unlawful transposition of the EU legislation on the basis that no such condition is contained in the Citizenship Directive.

However, the State questioned whether Voican would have a right to reside in the State if she sought social assistance and was no longer dependant on her daughter.

Mr Justice Simons pointed out that the requirement for dependent relatives of EU citizens not to become an unreasonable burden on the social welfare system only applied for the first three months of residence.

The judge noted that the Court of Justice of the EU had previously ruled that a dependent relative could not lose their right to reside in another EU member state if they subsequently sought work.

Mr Justice Simons said the same logic applied where a dependent relative sought social assistance.

He claimed the arguments put forward by the State were inconsistent with both case law and the EU Citizenship Directive.

The judge ruled that Voican as a dependent relative, who fulfilled the conditions for a right to reside in Ireland, could rely on the principle of equal treatment under EU legislation to claim social assistance.

#Open journalism No news is bad news Support The Journal

Your contributions will help us continue to deliver the stories that are important to you

Support us now

He noted her situation was different to economically inactive citizens and students.

Mr Justice Simons said it was telling that the State had made an “audacious attempt” to invoke the EU Citizenship Directive to justify refusing Voican’s claim for disability allowance.

He added: “The EU legislature has ordained that it is not an unreasonable burden for a member state to allow dependent family members of a migrant worker a right to equal treatment in respect of social assistance.

The judge said the applicable regulation which gives effect to the EU Citizenship Directive “goes too far and is invalid” as it sought to impose a requirement of self-sufficiency on a dependent relatives.

He ordered the Chief Appeals Officer to review Voican’s application for disability allowance and make a finding in accordance with his ruling within six weeks.

A spokesperson for the Minister for Employment Affairs and Social Protection, Regina Doherty, said her officials were considering the ruling but declined to comment further.

Comments are closed for legal reasons. 

About the author:

Seán McCárthaigh

Read next:

COMMENTS