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Voican v Chief Appeals Officer, Social Welfare Appeals Office (Approved) [2020] IEHC 258 (29 May 2020)
URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC258.html
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[2020] IEHC 258
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APPROVED
BETWEEN
THE HIGH COURT
JUDICIAL REVIEW
GEORGETA VOICAN
2019 No. 748 J.R.
APPLICANT
AND
CHIEF APPEALS OFFICER
SOCIAL WELFARE APPEALS OFFICE
MINISTER FOR EMPLOYMENT AFFAIRS AND SOCIAL PROTECTION
IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGMENT of Mr. Justice Garrett Simons delivered electronically on 29 May 2020
INTRODUCTION
1. These proceedings concern the extent of the rights enjoyed by the dependent family
members of an EU citizen who has taken up employment in Ireland. The principal issue
for determination is whether the mother of an EU citizen worker is entitled to receive a
form of social assistance, i.e. disability allowance, notwithstanding that she herself has
not been economically active in the Irish State and has been resident here for less than
five years.
2. For ease of exposition, I will refer to the applicant, throughout this judgment, as "the
mother", and to her daughter as "the daughter".
3. It is asserted on behalf of the mother that she enjoys certain derived rights under the
Citizenship Directive by virtue of her relationship with a migrant worker, namely her
NO REDACTION REQUIRED
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daughter, upon whom she is financially dependent. These derived rights include, it is
said, an entitlement to claim disability allowance.
4. The respondents dispute this, saying that the mother's very right to reside within the State
is predicated upon her continuing to be dependent upon her daughter. If the mother were
to be entitled to receive disability allowance, then she would become financially
dependent upon the State instead. This, it is said, would negate her right to reside within
the State. The domestic regulations which implement the Citizenship Directive expressly
provide that the retention of a right of residence is contingent on a person not becoming
an "unreasonable burden" on the social assistance system of the State. It is submitted
that this requirement is consistent with the Citizenship Directive. The social welfare
authorities acted lawfully, therefore, in refusing the claim for disability allowance.
5. The validity of this requirement of the domestic regulations has been challenged by the
mother in these proceedings. It is pleaded that it represents an unlawful transposition of
the Citizenship Directive on the premise that no such condition is set out in, or permitted
by, the Directive. In the alternative, it is pleaded that it is inconsistent with the equal
treatment imperatives under the Constitution of Ireland and the European Convention on
Human Rights in that such a requirement discriminates against the mother on the grounds
of her nationality.
LEGISLATIVE CONTEXT
6. The resolution of these proceedings necessitates consideration of three interconnected
legislative measures as follows.
Citizenship Directive (Directive 2004/38/EC)
7. The Citizenship Directive lays down the conditions governing the exercise of the right
of free movement and residence within the territory of the Member States by European
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Union citizens and their family members. A distinction is drawn between (i) residence
for an initial period of less than three months; (ii) residence for a period of longer than
three months; and (iii) permanent residence, which is a status that can be acquired after
five years. Different conditions attached to each, with the strongest rights being
conferred on a person who has the status of permanent residence. These proceedings are
concerned with the second type of residence, i.e. residence for a period of longer than
three months.
8. The Citizenship Directive also distinguishes between (i) economically active citizens,
i.e. those who are workers or self-employed; (ii) economically inactive citizens; and
(iii) students. The right of residence conferred upon the latter two categories is
conditional upon their having sufficient resources for themselves and their family
members not to become a burden on the social assistance system of the host Member
State during their period of residence.
9. This is provided for under Article 7(1) of the Citizenship Directive as follows.
1. All Union Citizens shall have the right of residence on the territory of another
Member State for a period of longer than three months if they:
(a) are workers or self-employed persons in the host Member State; or
(b) have sufficient resources for themselves and their family members
not to become a burden on the social assistance system of the host
Member State during their period of residence and have
comprehensive sickness insurance cover in the host Member State;
or
(c) -” are enrolled at a private or public establishment, accredited or
financed by the host Member State on the basis of its
legislation or administrative practice, for the principal
purpose of following a course of study, including vocational
training; and
-” have comprehensive sickness insurance cover in the host
Member State and assure the relevant national authority, by
means of a declaration or by such equivalent means as they
may choose, that they have sufficient resources for
themselves and their family members not to become a burden
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4
on the social assistance system of the host Member State
during their period of residence; or
(d) are family members accompanying or joining a Union citizen who
satisfies the conditions referred to in points (a), (b) or (c).
2. The right of residence provided for in paragraph 1 shall extend to
family members who are not nationals of a Member State,
accompanying or joining the Union citizen in the host Member State,
provided that such Union citizen satisfies the conditions referred to
in paragraph 1(a), (b) or (c).
[...]
4. By way of derogation from paragraphs 1(d) and 2 above, only the
spouse, the registered partner provided for in Article 2(2)(b) and
dependent children shall have the right of residence as family
members of a Union citizen meeting the conditions under 1(c) above.
Article 3(2) shall apply to his/her dependent direct relatives in the
ascending lines and those of his/her spouse or registered partner.
10. As appears, a migrant worker's right of residence-”and that of their family members-”
is not conditional on their having sufficient resources so as not to become a burden on
the social assistance system ("self-sufficiency"). The requirement for self-sufficiency is
confined to economically inactive citizens and their family members; and to students and
their family members. In respect of the latter, the category of family members of a
student who are entitled to residency is restricted under Article 7(4).
11. It is common case that the applicant's daughter is an EU citizen, and is lawfully resident
in the State as a "worker" for the purposes of Article 7(1)(a).
12. (It seems that the daughter's right of residence may actually have an even stronger legal
basis, in that not only is she a Union citizen (as a national of Romania), she is also a
naturalised Irish citizen. No argument has been addressed to me as to whether this status
affects the mother's derived rights. This judgment does not therefore address the status
of a dependant of an Irish Citizen).
13. The dispute between the parties centres on the extent of the mother's derived rights as a
"family member" of a migrant worker. To properly understand this dispute, it is
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necessary to consider the definition of "family member" under Article 2(2) of the
Citizenship Directive as follows:
-˜family member' means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered
partnership, on the basis of the legislation of a Member State, if the
legislation of the host Member State treats registered partnerships as
equivalent to marriage and in accordance with the conditions laid
down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants
and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the
spouse or partner as defined in point (b);
14. As appears, for an ascendant, such as a parent, to qualify as a "family member" of an EU
citizen, they must be dependent. The concept of dependency has been explained as
paragraphs 19 to 25. Dependent status is the result of a factual situation characterised by
the fact that material support for that family member is provided by the EU citizen who
has exercised his right of free movement or by his spouse. A situation of real dependence
must be established. In order to determine the existence of such dependence, the host
Member State must assess whether, having regard to his financial and social conditions,
the family member is not in a position to support himself. The need for material support
must exist either (i) in the State of origin of that family member, or (ii) in the State
whence he came, at the time when he applies to join that citizen. There is no need to
determine the reasons for that dependence nor the reasons for the recourse to that support.
15. The fact that an EU citizen regularly, for a significant period, pays a sum of money to
that descendant, necessary in order for him to support himself in the State of origin, is
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such as to show that the descendant is in a real situation of dependence vis-Ã -vis that
citizen.
16. It should be noted that the judgment in Reyes had been delivered in the context of a direct
descendant over the age of twenty-one, as opposed to a direct ascendant as on the facts
of the present case. This distinction does not affect the analysis as the concept of
dependency has the same meaning in both contexts. This is confirmed by the judgment
of the Court of Appeal in V.K. v. Minister for Justice and Law Reform [2019] IECA 232.
The Court of Appeal applied the principles in Reyes to a claim for dependency by the
parents of an EU citizen, i.e. a relative in the ascending line. Baker J., delivering the
unanimous judgment of the Court of Appeal, summarised the test for dependence as
follows.
"81. The test for dependence is one of EU law and an applicant must show,
in the light of his financial and social conditions, a real and not
temporary dependence on a Union citizen. The financial needs must
be for basic or essential needs of a material nature without which a
person could not support himself or herself. A person does not have
to be wholly dependent on the Union citizen to meet essential needs,
but the needs actually met must be essential to life and the financial
support must be more than merely -˜welcome' to use the language of
Edwards J. in M. v. Minister for Justice, Equality and Law Reform
[2009] IEHC 500.
82. The concept of dependence is to be interpreted broadly and in the
light of the perceived benefit of family unity and the principles of
freedom of movement."
17. Article 14 of the Citizenship Directive provides for the retention of the right of residence
as follows.
1. Union citizens and their family members shall have the right of
residence provided for in Article 6, as long as they do not become an
unreasonable burden on the social assistance system of the host
Member State.
2. Union citizens and their family members shall have the right of
residence provided for in Articles 7, 12 and 13 as long as they meet
the conditions set out therein.
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7
In specific cases where there is a reasonable doubt as to whether a
Union citizen or his/her family members satisfies the conditions set
out in Articles 7, 12 and 13, Member States may verify if these
conditions are fulfilled. This verification shall not be carried out
systematically.
3. An expulsion measure shall not be the automatic consequence of a
Union citizen's or his or her family member's recourse to the social
assistance system of the host Member State.
4. By way of derogation from paragraphs 1 and 2 and without prejudice
to the provisions of Chapter VI, an expulsion measure may in no case
be adopted against Union citizens or their family members if:
(a) the Union citizens are workers or self-employed persons, or
(b) the Union citizens entered the territory of the host Member
State in order to seek employment. In this case, the Union
citizens and their family members may not be expelled for as
long as the Union citizens can provide evidence that they are
continuing to seek employment and that they have a genuine
chance of being engaged.
18. As appears, a distinction is drawn between (i) residence for a period of less than three
months (Article 6); (ii) residence for a period of longer than three months (Articles 7, 12
and 13). The right of residence for the initial period of three months is contingent on the
EU citizen and their family members not becoming an "unreasonable burden" on the
social assistance system of the host Member State. There is no such blanket requirement
in the case of residence which extends beyond three months. Rather, the EU citizen and
their family members must comply with the conditions applicable to their category of
residence. On the facts of the present case, the mother asserts a right of residence under
Article 7(1)(d) which is derived from her daughter's residence under Article 7(1)(a).
This category of residence is not subject to a self-sufficiency requirement.
19. Article 24 of the Citizenship Directive ensures that Union citizens residing in another
Member State are entitled to equal treatment with the nationals of the host State. The
Court of Justice has held that the principle of non-discrimination, laid down generally in
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Article 18 TFEU, is given more specific expression in Article 24 of the Citizenship
Directive. (See Dano, Case C-333/13, EU:C:2014:2358, at paragraph 61).
20. Article 24 reads as follows.
1. Subject to such specific provisions as are expressly provided for in
the Treaty and secondary law, all Union citizens residing on the basis
of this Directive in the territory of the host Member State shall enjoy
equal treatment with the nationals of that Member State within the
scope of the Treaty. The benefit of this right shall be extended to
family members who are not nationals of a Member State and who
have the right of residence or permanent residence.
2. By way of derogation from paragraph 1, the host Member State shall
not be obliged to confer entitlement to social assistance during the
first three months of residence or, where appropriate, the longer
period provided for in Article 14(4)(b), nor shall it be obliged, prior
to acquisition of the right of permanent residence, to grant
maintenance aid for studies, including vocational training, consisting
in student grants or student loans to persons other than workers, self-
employed persons, persons who retain such status and members of
their families.
21. As appears, the right of equal treatment applies not only to EU citizens, but also extends
to family members who are third country nationals with the right of residence or
permanent residence in the host State.
22. The derogation under Article 24(2) provides, relevantly, that the host Member State shall
not be obliged to confer entitlement to "social assistance" during the first three months
of residence. Again, this reflects the distinction made throughout the Citizenship
Directive between (i) residence for an initial period of less than three months (Article 6);
(ii) residence for a period of longer than three months (Articles 7, 12 and 13).
23. The concept of "social assistance" has been interpreted by the Court of Justice as
referring to all assistance schemes established by the public authorities, whether at
national, regional or local level, to which recourse may be had by an individual who does
not have resources sufficient to meet his own basic needs and those of his family, and
who by reason of that fact may, during his period of residence, become a burden on the
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9
public finances of the host Member State which could have consequences for the overall
level of assistance which may be granted by that State. (See Dano, Case C-333/13,
24. The Court of Justice has emphasised that, insofar as access to social assistance is
concerned, an EU citizen can claim equal treatment with nationals of the host Member
State only if his or her residence in the territory of the host Member State complies with
the conditions of the Citizenship Directive. (Dano, paragraph 69).
25. There is thus an organic link between the conditions prescribed under Article 7, and the
right to equal treatment conferred by Article 24 of the Citizenship Directive.
European Communities (Free Movement of Persons) Regulations 2015
26. The Citizenship Directive has been transposed into domestic law by the European
Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) ("the
domestic regulations").
27. The domestic regulations use the terms "qualifying family member" and "permitted
family member" to distinguish between what might be described as "core" family
members (including dependent direct ascendants), and "extended" family members,
respectively. This distinction reflects that provided for under Articles 3(1) and (2) of the
Citizenship Directive.
28. Relevantly, the definition of "qualifying family member" under regulation 3(5) of the
domestic regulations includes "a dependent direct relative in the ascending line of the
Union citizen, or of his or her spouse or civil partner". The domestic regulations do not
provide a definition of "dependent" or "dependency" in this context. Pointedly, however,
such a definition is provided for in the specific context of family members whose right
of residence derives from an EU citizen who is enrolled in an educational establishment
for the principal purpose of following a course of study, i.e. a student. It will be recalled
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that, under Article 7(4) of the Citizenship Directive, the derived family rights of a student
are more limited than those of workers or the self-employed. (See paragraph 9 above).
First, dependent direct relatives in the ascending line do not automatically benefit from a
right of residence. Rather, such relatives fall to be treated as members of what might be
described as the "extended" family. Secondly, even in the case of what might be
described as "core" family members, a student must (i) have comprehensive sickness
insurance cover in the host Member State, and (ii) assure the relevant national authority
that they have sufficient resources for themselves and their family members not to
become a burden on the social assistance system of the host Member State during their
period of residence (Article 7(1)(c)).
29. In order for a direct relative in the ascending line of a student who is dependent on the
student (or their spouse) to obtain a right of residence it is necessary to apply to the
Minister for Justice and Equality for permission to remain in the State. The criteria
governing the determination of such an application are prescribed as follows at
regulation 6(5)(c) of the domestic regulations.
(c) In order to decide whether to grant a permission under paragraph (a),
the Minister shall cause to be carried out an extensive examination of
the personal circumstances of the applicant and shall have regard to
the following:
(i) the extent and nature of the dependency;
(ii) in the case of financial dependency, the extent and duration
of the financial support provided by the Union citizen or his
or her spouse or civil partner to the applicant prior to the
applicant's coming to the State, having regard, amongst other
relevant matters, to living costs in the country from which the
applicant has come, whether the financial dependency can be
satisfied by remittances to the applicant in the country from
which he or she has come and other financial resources
available to him or her;
(iii) in the case of dependency on serious health grounds which
strictly require the personal care of the Union citizen or his or
her spouse or civil partner, the nature of the serious health
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grounds concerned and the duration of the period in which
they have existed;
(iv) the capacity of the Union citizen concerned to continue to
support the applicant in the State* in the event that the
Minister were to grant a permission.
*Emphasis (italics) added.
30. As appears, the Minister is required to have regard not only to the extent and duration of
the financial support provided to the alleged dependant prior to their coming to the State,
but also to the capacity of the student concerned to continue to support the dependant in
the State. There is no equivalent provision under the domestic regulations in respect of
the dependant of a worker.
31. Regulation 11(1) of the domestic regulations provides as follows.
11. (1) A person residing in the State under Regulation 6, 9 or 10 shall be
entitled to continue to reside in the State for as long as he or she
satisfies the relevant provision of the regulation concerned and does
not become an unreasonable burden on the social assistance system
of the State.
32. The validity of this regulation has been challenged in these proceedings on the basis that
it is said to have improperly extended the no "unreasonable burden" requirement to the
family members of an economically active citizen, i.e. a worker or self-employed person.
Social Welfare Consolidation Act 2005 (as amended)
33. Section 210 of the Social Welfare Consolidation Act 2005 can be summarised as
providing that, in order to be eligible for disability allowance, a claimant must meet the
following qualifying criteria.
(i). A claimant must have attained the age of 16 years, but not yet have
attained pensionable age;
(ii). A claimant must be substantially restricted in undertaking suitable
employment (as defined) by reason of a specified disability; and
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(iii). The claimant's weekly means must not exceed the amount of
disability allowance (including any increases of that allowance)
which would be payable to the person if that person had no means.
34. (This section has since been amended by the Social Welfare (No. 2) Act 2019, but the
decision impugned in these proceedings had been made prior to these amendments
coming into force).
35. Section 210(9) provides that a person shall not be entitled to disability allowance unless he
or she is habitually resident in the State.
36. The concept of "habitual residence" is defined at Section 246 of the Social Welfare
Consolidation Act 2005 (as amended). Insofar as relevant, subsection 246(1) provides
inter alia that a person, who is a family member of a worker or a self-employed person from
an EU Member State residing in the State pursuant to Article 7 of the Citizenship Directive,
meets the requirement of being habitually resident in the State. Pointedly, neither
economically inactive persons nor students (nor, by extension, their family members) are
expressly included within this definition of "habitual residence". Put otherwise, the
social welfare legislation properly observes the distinctions drawn under Article 7 of the
Citizenship Directive discussed at paragraph 10 above.
37. Subsection 246(5) provides as follows.
(5) Notwithstanding subsections (1) to (4) and subject to subsection (9),
a person who does not have a right to reside in the State shall not, for
the purposes of this Act, be regarded as being habitually resident in
the State.
38. Subsection 246(6) then provides inter alia that a person who has the right under the EC
(Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) to enter and reside in
the State, or who is deemed under those Regulations to be lawfully resident in the State, shall,
for the purpose of subsection 246(5), be taken to have a right to reside in the State. (These
are the regulations referred to as "the domestic regulations" in this judgment).
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PROCEDURAL HISTORY
39. This matter comes before the High Court in the form of judicial review proceedings. The
proceedings seek to challenge a decision made by the Chief Appeals Officer on 23 July
2019 ("the decision"). The decision was made pursuant to section 318 of the Social
Welfare Consolidation Act 2005. This section allows the Chief Appeals Officer to revise
any decision of an appeals officer, where it appears to the Chief Appeals Officer that the
decision was erroneous by reason of some mistake having been made in relation to the
law or the facts.
40. The applicant in the proceedings is a Romanian national, and, as such, an EU citizen.
The applicant asserts that she is a "dependent direct relative in the ascending line" of a
migrant worker, namely her daughter. As such, it is said that the applicant has a right of
residency derived from her daughter's primary right of residence as a worker.
41. It has been accepted by the respondents that the applicant had been residing in Ireland
between 2009 and 2011, and returned to Ireland in 2017 (at the latest). It is also accepted
that the applicant's daughter is an EU citizen and has been living and working lawfully
in this State for a considerable period of time, and is now a naturalised Irish citizen. (See
affidavit of Ms Joan Gordon).
42. The operative part of the Chief Appeals Officer's decision reads as follows.
"From my review of the Appeals Officer's decision of 26th June 2019 it is
clear that the Appeals Officer was satisfied that Ms. Voican was a dependent
direct relative in the ascending line of a Union citizen who is a worker in
Ireland. The Appeals Officer was also satisfied that Ms. Voican had
established that the dependency existed prior to Ms. Voican joining her
daughter in Ireland. In this respect the Appeals Officer reported:
The appellant has adduced at the oral hearing that she was been
supported by her daughter Angelica and her other daughter in Spain
when she was living in Romania. At the hearing the appellant's
daughter stated that she had always forwarded money on a weekly to
a fortnightly basis to her mother, whenever she needed it. She has
provided a number of Western Union Money Transfer Receipts to
verify same. She has always done this since living in Ireland and this
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would cover her daily or medical needs. Her mother is separated
from her spouse and this separation has been ongoing for
approximately 15 years. She originally moved to live with her other
daughter in Spain and was supported by her daughter there as well
as her daughter living in Ireland who she resides with now. The
appellant's daughter advised that she is fully supporting her mother
since she came to Ireland to live with her. She advised that she also
fully supported her when her mother was living in Romania and
Spain. She has advised that she is finding it very difficult to
financially support her having her own family to support. She states
her mother is completely dependent upon her and that she takes her
to all her medical and other appointments.
The Appeals Officer further reported that in light of the foregoing I have
concluded that the appellant does have a right to reside in accordance with
Article 6 of Statutory Instrument 548/2015 however is not entitled to receive
assistance under the Social Welfare Acts.
The Appeals Officer considered that Ms. Voican, who is herself a Union
citizen, has a right to reside on the basis of being a dependent direct relative
in the ascending line of a Union citizen who is a worker in Ireland. In those
circumstances the provisions of Article 6(3)(a)(iv) of S.I. 548 of 2015
applies.
Ms. Hetherington, acting on behalf of Ms. Voican, asserts that as Ms. Voican
has established a right to reside her appeal should be allowed on those
grounds.
However, in accordance with the Directive 2004/38/EC and the Regulations
of 2015 (S.I. 548 of 2015) giving further effect to the Directive, the right to
reside is not unconditional. The Directive and the Regulations draw a
distinction between economically active persons and those who are not.
Article 11 of S.I. 548 of 2015, dealing with the retention of rights of
residence, provides:
A person residing in the State under Regulation 6, 9 or 10 shall be
entitled to continue to reside in the State for as long as he or she
satisfies the relevant provision of the regulation concerned and does
not become an unreasonable burden on the social assistance system
of the State.
While Ms. Voican is residing in the State under Article 6 the right to reside
is not unconditional and she may continue to reside for as long as she satisfies
the provisions of Article 6 and does not become an unreasonable burden on
the social assistance system of the State.
I therefore do not consider that the Appeals Officer has erred in law on the
grounds submitted by Ms. Hetherington on behalf of Ms. Voican and in those
circumstances I must decline to revise the decision of the Appeals Officer."
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43. In their written legal submissions, the respondents contend that the decision should be
understood as meaning that the Chief Appeals Officer did not accept that the mother
would have a right to reside in the State in circumstances where she sought social
assistance and thus was no longer dependent on her daughter.
"6. It is clear from the decision of the Chief Appeals Officer that she did
not accept that the Applicant would have a right to reside in the State
under either the Directive or the Regulations in circumstances where
she sought social assistance and thus was no longer dependant on her
daughter. In that regard, the characterisation of the Decision by the
Applicant as not disturbing the findings of the Appeals Officer on the
question of a right to reside is inaccurate. This will be addressed
further below but the decision of the Chief Appeals Officer is
premised on a central conclusion that the Applicant does not meet the
criteria contained in the 2015 Regulations or the Directive and
therefore, does not have a right to reside in the State.
44. The written submissions return to this point at §28 as follows.
"[...] As outlined above, in considering the -˜retention of rights of
residence' the Chief Appeals Officer expressly stated that the right to
reside was not unconditional and only continued to exist for as long
as the Applicant satisfied the requirements of Article 6 and also does
not become an unreasonable burden on the social assistance system
of the State. This can only be read as a finding that there was a failure
by the Applicant to continue to comply with the requirements of
Article 6 of the 2015 Regulations and, consequently, that she does
not have a right to reside in the State for that reason."
45. It is noted in the affidavit of Ms Joan Gordon, the Chief Appeals Officer, filed on behalf
of the respondents that disability allowance is paid without an individual having to have
made any social insurance contributions, i.e. it is a social assistance payment.
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DETAILED DISCUSSION
46. The respondents' defence to these proceedings is striking in its simplicity. It is contended
that the mother only meets the definition of a "family member" because she is currently
dependent on her daughter. In the absence of continuing dependency, it is said that the
Applicant would not meet the definition contained in the Citizenship Directive, and
would have no right to reside within the State. The argument is encapsulated as follows
at §44 of the respondents' written submissions.
"[...] The position of the State is that in order for the Applicant to
establish a right to reside in the State she must be dependent on her
daughter and that such dependency must be ongoing and continuing.
The position of the State is, further, that where the Applicant is reliant
on the social assistance system of the State she can no longer be said
to be dependent on her daughter and, thus, does not fulfil a specific
requirement of the Directive. It is a matter between the Applicant
and her daughter whether the daughter wishes to or is in a position to
maintain the Applicant. The State's position is simply that the
Applicant cannot claim a right to reside in this State as a dependant
of her daughter's and then insist that the State provide the financial
resources necessary to maintain her."
47. The correctness or otherwise of this argument turns largely on the definition of "family
member" under Article 2(2)(d) of the Citizenship Directive. This provides, in effect, that
the term "family member" includes dependent direct relatives in the ascending line of the
EU citizen with primary residence rights. The dispute between the parties centres on
whether the definition requires that such dependency must be ongoing and continuing.
48. The case law of the Court of Justice is unequivocal on this point. See, in particular,
support must exist either (i) in the State of origin of the family member, or (ii) in the State
whence he came, at the time when he applies to join the EU citizen. The fact that an EU
citizen regularly, for a significant period, pays a sum of money to that descendant,
necessary in order for him to support himself in the State of origin, is enough to show
that the descendant is in a real situation of dependence vis-Ã -vis that citizen.
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49. The principle that the dependency need only exist in the State of origin was ultimately
determinative of the outcome of the proceedings in Reyes. By its second question, the
referring court had asked whether, at the time of assessing the status of the family
member asserting dependence, the national authorities must assign any importance to the
fact that that family member is well placed to obtain employment in the host Member
State. The implication here being that if the family member did, indeed, obtain gainful
employment in the host Member State, they would, in consequence, no longer be a
dependent family member, and might forfeit their derived right of residence.
50. The Court of Justice held that the situation of dependency must exist in the country of
origin and at the time when the family member applies to join the Union citizen on whom
they are dependent. See paragraphs 29 to 32 of the judgment as follows.
"29. By its second question, the referring court asks, in essence, whether,
in interpreting the term -˜dependant' in Article 2(2)(c) of Directive
2004/38, any significance attaches to the fact that a family member -“
due to personal circumstances such as age, education and health -“ is
deemed to be well placed to obtain employment and in addition
intends to start work in the Member State, which would mean that the
conditions for him to be regarded as a relative who is a dependant
under the provision are no longer met.
30. In that regard, it must be noted that the situation of dependence must
exist, in the country from which the family member concerned
comes, at the time when he applies to join the Union citizen on whom
he is dependent (see, to that effect, Jia, paragraph 37, and Case
C-‘83/11 Rahman [2012] ECR, paragraph 33).
31. It follows that, as, in essence, has been stated by all the parties which
have submitted observations to the Court, any prospects of obtaining
work in the host Member State which would enable, if necessary, a
direct descendant, who is 21 years old or older, of a Union citizen no
longer to be dependent on that citizen once he has the right of
residence are not such as to affect the interpretation of the condition
of being a -˜dependant' referred to in Article 2(2)(c) of Directive
2004/38.
32. Furthermore, as the European Commission has rightly pointed out,
the opposite solution would, in practice, prohibit that descendant
from looking for employment in the host Member State and would
accordingly infringe Article 23 of that directive, which expressly
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18
authorises such a descendant, if he has the right of residence, to take
up employment or self-employment (see, by analogy, Lebon,
paragraph 20)."
51. The same logic applies where a subsequent loss of dependence is caused by the family
member being granted social assistance in the host Member State. Provided that the
requisite dependence has been established in the State of origin at the time the derived
right of residence is sought, then the residency status is not affected by the grant of social
assistance thereafter.
52. The contrary interpretation advanced on behalf of the respondents is not only inconsistent
with the case law discussed above, it would also be inconsistent with Article 24 of the
Citizenship Directive. It will be recalled that Article 24 provides that all EU citizens
residing on the basis of the Citizenship Directive in the territory of the host Member State
shall enjoy equal treatment with the nationals of that Member State. The mother is a
Romanian national and thus an EU citizen. Having established a right of residence on
the basis of her dependence, while in Romania, upon her daughter, who is a migrant
worker under Article 7(1)(a), the mother is lawfully residing in the State on the basis of
Article 7(1)(d) and is entitled to equal treatment under Article 24. Yet on the
respondents' argument, the mother is precluded from pursuing a claim for social
assistance on the same basis as an Irish national.
53. An argument in similar terms to that being relied upon by the respondents in these
proceedings had been attempted-”and rejected by the Court of Justice-”in Lebon, Case
54. The proceedings in Lebon concerned Regulation 1612/68 on freedom of movement for
workers within the Community ("the Workers Regulation"). (This legislation is no
longer in force, and has been replaced, in part, by the Citizenship Directive).
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19
55. Article 10(1) of the Workers Regulation, insofar as relevant, had provided that
(i) descendants under the age of twenty-one years, and (ii) dependent descendants, of a
migrant worker and his spouse were to have the right to "install themselves" with the
worker in the territory of another Member State. Article 7(2) had provided that such a
migrant worker shall enjoy the same social and tax advantages as national workers.
56. The facts in Lebon were as follows. Ms Lebon, a French national, had lived in Belgium
since her birth (except for a period from 1979 to 1981, during which she worked in
France). At the time of the legal proceedings, she had been living with her parents and
her child. Her father, who was also a French national, had worked in Belgium from 1949
to 1976, and had been in receipt of a retirement pension since 1977. (To avoid any
confusion, it should be noted that-”although expressly raised by the referring court-”the
fact that Ms Lebon's father had been retired did not affect the legal analysis. It had been
accepted that, as a former migrant worker, the father continued to enjoy a right of
residence in Belgium).
57. In circumstances where Ms Lebon was over twenty-one years of age, her derived right
to reside in the host Member State was contingent on her being a dependant of her father.
58. Ms Lebon had applied for a form of social assistance known as "the minimax". This was
the minimum means of subsistence provided for by Belgian Law.
59. As appears from the report for the hearing and from the judgment itself, the Netherlands
Government had sought to argue that the making of a claim for social assistance was
inconsistent with the dependency requirement under Article 10(1) of the Workers
Regulation. This argument was, however, rejected by the Court of Justice. See
paragraphs 18 to 21 of the judgment as follows.
"According to the Netherlands Government, the term -˜dependent'
means that the worker must -˜wholly or largely support' the
descendant. In its view, the claim by a descendant for the grant of
the minimex means that that person is no longer dependent on his
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20
ascendant and, consequently, no longer comes within the scope of the
definition in Article 10 (1) of Regulation No 1612/68.
The government of the Federal Republic of Germany maintained at
the hearing that the status of dependent member of the family
presupposes not only the existence of a situation in which the person
concerned is unable to support himself but also the existence of a
right to maintenance on the part of the worker himself.
It must be pointed out, in the first place, that a claim for the grant of
the minimex submitted by a member of a migrant worker's family
who is dependent on the worker cannot affect the claimant's status as
a dependent member of the worker's family. To decide otherwise
would amount to accepting that the grant of the minimex could result
in the claimant forfeiting the status of dependent member of the
family and consequently justify either the withdrawal of the minimex
itself or even the loss of the right of residence. Such a solution would
in practice preclude a dependent member of a worker's family from
claiming the minimex and would, for that reason, undermine the
equal treatment accorded to the migrant worker. The status of
dependent member of a worker's family should therefore be
considered independently of the grant of the minimex.*
It must be pointed out, secondly, that the status of dependent member
of a worker's family does not presuppose the existence of a right to
maintenance either. If that were the case, the composition of the
family would depend on national legislation, which varies from one
State to another, and that would lead to the application of Community
law in a manner that is not uniform."
*Emphasis (italics) added.
60. The rationale for rejecting the argument that the making of a claim for social assistance
was inconsistent with dependency is even more clearly stated by Advocate General Lenz
in his Opinion as follows (at paragraph 35).
"How untenable the Netherlands argument is becomes clear,
however, if it is borne in mind that it would mean that if indigent
members of the families of migrant workers were to claim social
assistance benefits they would lose the right of residence (because
they would no longer be supported by the worker) or, to express it
differently, in such situations they could have a right of residence
only if they forwent essential benefits available to nationals, that is if
they accepted a serious disadvantage."
61. The respondents have sought to diminish the importance of the judgment in Lebon by
drawing attention to the answer provided by the Court of Justice to another question
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21
raised by the referring court. This question, in brief, had asked whether the descendants
of a (retired) worker, who were living with him, retained the right to equality of treatment
granted by the Workers Regulation when they have reached the age of majority, were no
longer dependent upon him, and did not have the status of workers?
62. The Court of Justice answered the question as follows (at paragraphs 13 and 14).
"It follows that, where a worker who is a national of one Member
State was employed within the territory of another Member State and
exercised the right to remain there, his descendants who have reached
the age of 21 and are no longer dependent on him may not rely on the
right to equal treatment guaranteed by Community law in order to
claim a social benefit provided for by the legislation of the host
Member State and guaranteeing in general terms the minimum means
of subsistence. In the circumstances, that benefit does not constitute
for the worker a social advantage within the meaning of Article 7 (2)
of Regulation No 1612/68, inasmuch as he is no longer supporting
his descendant.*
The answer to the first question must therefore be that, where a
worker who is a national of one Member State was employed within
the territory of another Member State and remains there after
obtaining a retirement pension, his descendants do not retain the right
to equal treatment with regard to a social benefit provided for by the
legislation of the host Member State and guaranteeing in general
terms the minimum means of subsistence where they have reached
the age of 21, are no longer dependent on him and do not have the
status of workers."
*Emphasis (italics) added.
63. This answer simply confirms that a child who has passed the age of twenty-one years
must demonstrate actual dependency in order to assert an indirect right to equal treatment.
In contrast to a child aged under twenty-one years, an adult-child is not automatically
treated as a dependant. This is so even where the adult-child had previously enjoyed an
automatic status as a dependant, and continued thereafter to live with the worker. Put
otherwise, a child who has "aged out" cannot rely on their previous right of residence
based on presumed dependence, but must instead demonstrate actual dependence.
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22
64. The provision of social assistance to a non-dependent descendant would not be a "social
advantage" to the worker precisely because it would not relieve him of any existing
financial liability, i.e. in circumstances where he was not actually supporting the
descendant. It is only in the case of actual dependence by an adult relative that the worker
would obtain a "social advantage" within the meaning of Article 7(2) of the Workers
Regulation.
65. Thus, in order to determine whether Ms Lebon was a dependant of her father, it would
be necessary to consider her factual situation. It was in this context that the Court of
Justice held that the status of a dependent member of a worker's family should be
considered independently of the grant of social assistance.
66. There is no inconsistency between the two answers given by the Court of Justice in
Lebon. The first question was expressly predicated on the worker's relative not being
dependent upon the worker. The response to the second question answered (this had
been the third question referred) then addressed the legal test for determining whether a
factual situation of dependence existed.
67. There is nothing in the judgment in Lebon which stands as authority for the proposition
that the requirement for dependency in the State of origin under the Citizenship Directive
must be read as containing an implicit requirement for ongoing or continuing dependency
in the host Member State.
68. The respondents have sought at §40 of their written submissions to make something of
the fact that the judgment in Lebon concerned a dependent relative in the descending line,
whereas, in the present case, the claim for social assistance is made in respect of a
dependant in the ascending line. With respect, this is a distinction without a difference.
As appears from the judgment of the Court of Appeal in V.K. v. Minister for Justice and
Law Reform [2019] IECA 232, the concept of dependency is the same in both contexts.
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23
69. The respondents also ventured to suggest that the payment at issue in Lebon had been a
minimal payment, whereas the disability allowance at issue in the present case is intended
to meet all of a person's basic subsistence needs, and, if granted, would result in full
dependency upon the State. With respect, any distinction between the quantum of the
two forms of social assistance-”and such a distinction has not been clearly
demonstrated-”is not relevant to the principle established in Lebon, which is to the effect
that the status of a dependent member of a worker's family should be considered
independently of the grant of social assistance. This principle is founded upon the
migrant worker's right to equal treatment, and does not turn on the quantum of the social
assistance being claimed.
70. Finally, counsel for the respondents submits that the judgment in Lebon has to be read in
the context of the then legislation, and observes that a person with a period of residence
equivalent to that of Ms Lebon would now have a right of permanent residence under
Chapter IV of the Citizenship Directive. A permanent resident is not subject to any self-
sufficiency requirement.
DECISION OF THE COURT
71. The legal issue to be determined in these proceedings is net. The length of this judgment
is more a testament to the careful and comprehensive submissions of the parties, than the
result of any inherent complexity in the legal principles.
72. The case turns largely on the definition of "family member" under Article 2(2)(d) of the
Citizenship Directive. The mother asserts that she is a "dependent direct relative in the
ascending line", and that, as such, she has a right of residency derived from her daughter's
primary right of residence as a migrant worker. The case law of the Court of Justice is
unequivocal: the situation of dependency must exist in the country of origin and at the
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24
time when the family member applies to join the EU citizen on whom they are dependent.
(The case law is discussed at paragraphs 14 to 16 above).
73. It is common case that the mother had been dependent on her daughter, a migrant worker,
for financial support prior to the mother joining the daughter in Ireland. It follows,
therefore, that the mother fulfilled the dependency criteria. The mother thus has a right
of residence within the State based on Article 7(1)(d) of the Citizenship Directive and
retains this right under Article 14.
74. The mother also fulfils the requirements under section 246(1) of the Social Welfare
Consolidation Act 2005. This is because, as discussed at paragraphs 36 to 38 above, the
definition of habitual residence expressly addresses the position of workers and family
members.
75. Article 24 of the Citizenship Directive provides that all EU citizens residing on the basis
of the Directive in the territory of the host Member State shall enjoy equal treatment with
the nationals of that Member State within the scope of the Treaty. This extends to family
members-”such as the mother in this case-”who are themselves EU citizens. This is
subject always to the family member complying with the conditions of residence
prescribed under the Citizenship Directive. (See Dano, Case C-333/13,
76. The mother complies with the requirements under Article 7(1)(d) and Article 14. In
particular, she meets the requirement of having been dependent, in her State of origin,
upon an EU citizen who is a migrant worker, i.e. her daughter. There is no requirement
under Article 7(1)(a) or 7(1)(d) for self-sufficiency in the case of a worker and dependent
family member. Such a family member can rely on the principle of equal treatment to
claim social assistance. This is to be contrasted with the requirements applicable to
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25
economically inactive citizens and to student citizens (and their family members) under
Articles 7(1)(b) and 7(1)(c).
77. The respondents have-”mistakenly-”sought to pigeon-hole the mother as an
economically inactive citizen, rather than as a dependent family member. At §37 of their
written submissions, the respondents go so far as to say that Article 7(1)(b) of the
Citizenship Directive envisages that the daughter will have sufficient resources to support
her mother.
"[...] The Applicant is a person who is not, and has never been,
economically active in the State and is not a person who has paid
social insurance contributions. In these circumstances, the
requirements of her right to reside includes a requirement to continue
to be dependent on the relevant Union Citizen -“ and indeed Article
7(b) of the Directive envisages that the Applicant's daughter, being
the Union citizen, will have sufficient resources to support her
mother -“ i.e. to prevent her family members becoming a burden on
the social assistance system of the State. If a person has recourse to
the social assistance system of the State, it cannot be said that they
are dependent on the Union Citizen. In these circumstances, a
fundamental qualification requirement of the Directive is not met
and, therefore, that individual is no longer in compliance with the
requirements of the Directive."
78. This audacious attempt to invoke the requirements of Article 7(1)(b) in order to justify
the refusal of social assistance to the mother is telling. Article 7(1)(b) has no application
whatsoever to the circumstances of a migrant worker and a dependent family member.
Rather, it is directed to circumstances where the primary right of residence is that of an
economically inactive citizen. In such a scenario, the rights of residence of the citizen
and family members (the latter may not necessarily be citizens themselves) is contingent
on the citizen having sufficient resources for themselves and their family members not
to become a burden on the social assistance system of the host Member State during their
period of residence, and on having comprehensive sickness insurance cover.
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26
79. As explained in judgments such as, for example, Dano, the Citizenship Directive
distinguishes between (i) persons who are working and (ii) those who are not. See
paragraph 75 of Dano, as follows.
"It should be added that, as regards the condition requiring possession
of sufficient resources, Directive 2004/38 distinguishes between
(i) persons who are working and (ii) those who are not. Under Article
7(1)(a) of Directive 2004/38, the first group of Union citizens in the
host Member State have the right of residence without having to fulfil
any other condition.* On the other hand, persons who are
economically inactive are required by Article 7(1)(b) of the directive
to meet the condition that they have sufficient resources of their
own."
*Emphasis (italics) added.
80. Article 7(1)(b) is not applicable to the facts of the present case, and certainly cannot be
relied upon by the respondents to rewrite the definition of dependency for the purposes
of Article 2(2) of the Citizenship Directive, as interpreted in the case law of the Court of
Justice.
81. The rationale for allowing a dependent family member to access social assistance is
similar to that explained by the Court of Justice in Lebon, Case 316/85, EU:C:1987:302.
It would undermine the equal treatment accorded to the migrant worker to deny his
dependants access to social assistance.
82. It is worth recalling the manner in which Advocate General Lenz dismissed an argument
that the term "dependent' means that the migrant worker must wholly or largely support
the family member, and that the grant of social assistance would mean that that person is
no longer dependent. See paragraph 35 of the Opinion in Lebon as follows.
"How untenable the [...] argument is becomes clear, however, if it is
borne in mind that it would mean that if indigent members of the
families of migrant workers were to claim social assistance benefits
they would lose the right of residence (because they would no longer
be supported by the worker) or, to express it differently, in such
situations they could have a right of residence only if they forwent
essential benefits available to nationals, that is if they accepted a
serious disadvantage."
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27
83. The rationale underlying the judgment in Lebon, namely that the pursuit of a claim for
social assistance is not inconsistent with dependency, applies a fortiori to the Citizenship
Directive. This is because under the Workers Regulation, members of a worker's family
had qualified only indirectly for equal treatment. Article 7 of the Workers Regulation
had been directed to the worker himself. Any entitlement to social assistance on behalf
of a family member was conditional on the payment of same being a "social advantage"
to the worker. By contrast, under the Citizenship Directive, the person claiming social
assistance, namely the mother, has an entitlement to equal treatment in her own right
under Article 24.
84. I turn now to apply these principles to the decision of the Chief Appeals Officer
impugned in these proceedings. The Chief Appeals Officer had accepted the earlier
finding of the appeals officer to the effect that the mother had been dependent on her
daughter prior to her joining her daughter in Ireland. The Chief Appeals Officer went
on, however, to rely on regulation 11 of the domestic regulations to find that the mother's
right of residence was conditional on her not becoming an unreasonable burden on the
social assistance system of the State.
85. Both the Chief Appeals Officer's reasoning, and the provisions of regulation 11 upon
which she relied, are inconsistent with the requirements of the Citizenship Directive. The
EU legislature has ordained that it is not an unreasonable burden for a Member State to
allow the dependent family members of a migrant worker a right to equal treatment in
respect of social assistance. The requirement for self-sufficiency does not apply to
dependent family members of a migrant worker who are lawfully resident in the State for
a period of more than three months.
86. Whereas it is consistent with EU law to impose a requirement for self-sufficiency in
respect of other categories of EU citizens in accordance with Articles 7(1)(b) and 7(1)(c)
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28
of the Citizenship Directive, regulation 11 of the domestic regulations goes too far and
is invalid insofar as it purports to extend such a requirement to a dependent family
member of a migrant worker who is lawfully resident in the State. This aspect of
regulation 11 must be disapplied as it is inconsistent with the provisions of the
Citizenship Directive which have direct effect.
CONCLUSION AND PROPOSED FORM OF ORDER
87. The applicant in these proceedings has a right of residence within the State based on
Article 7(1)(d) and Article 14 of the Citizenship Directive. Prior to joining her daughter
in Ireland, the applicant, while living in Romania and Spain, had been financially
dependent on her daughter, an EU citizen, who is a migrant worker lawfully resident in
the State. The applicant thus fulfilled the dependency criteria under Article 2(2)(d). (See,
88. The respondents are not entitled to impose a "self-sufficiency" requirement on the
applicant nor to deny her equal treatment in the context of an application for social
assistance in the form of a disability allowance. The EU legislature has ordained that it
is not an unreasonable burden for a Member State to allow the dependent family members
of a migrant worker a right to equal treatment in respect of social assistance. (Different
considerations apply in respect of the initial three months of residence).
89. I propose therefore to make an order of certiorari, in terms of paragraph (d) (1) of the
amended statement of grounds, quashing the decision of the Chief Appeals Officer dated
23 July 2019. The matter is to be remitted, pursuant to Order 84, rule 27, to the Chief
Appeals Officer with a direction to reconsider it and reach a decision in accordance with
the findings of the High Court. I propose to direct that the reconsideration be carried out
and completed within six weeks of the date of perfection of the High Court order.
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29
90. I also propose to make a declaration to the effect that regulation 11 of the European
Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) is
inconsistent with the requirements of the Citizenship Directive. I invite written
submissions from the parties on whether regulation 11 should be set aside or whether the
offending words "and does not become an unreasonable burden on the social assistance
system of the State" should be struck out.
91. In circumstances where the proceedings have been resolved in favour of the applicant by
reference to the grounds pleaded in respect of the Citizenship Directive, it is unnecessary
to address the alternative grounds of challenge advanced by reference to the Constitution
of Ireland and the European Convention on Human Rights. To do so now would be
inconsistent with the principle of judicial self-restraint.
92. The attention of the parties is drawn to the practice direction issued on 24 March 2020 in
respect of the delivery of judgments electronically, as follows.
"The parties will be invited to communicate electronically with the
Court on issues arising (if any) out of the judgment such as the precise
form of order which requires to be made or questions concerning
costs. If there are such issues and the parties do not agree in this
regard concise written submissions should be filed electronically with
the Office of the Court within 14 days of delivery subject to any other
direction given in the judgment. Unless the interests of justice require
an oral hearing to resolve such matters then any issues thereby arising
will be dealt with remotely and any ruling which the Court is required
to make will also be published on the website and will include a
synopsis of the relevant submissions made, where appropriate."
93. The parties are requested to correspond with each other on the question of the appropriate
form of order, and on the question of costs. In default of agreement between the parties
on these issues, short written submissions should be filed in the Central Office within
twenty-one days of today's date.
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30
Appearances
Derek Shortall for the applicant instructed by KOD Lyons Solicitors
Nuala Butler, SC and Aoife Carroll for the respondents instructed by the Chief State Solicitor
Voican v Chief Appeals Officer, Social Welfare Appeals Office (Approved) [2020] IEHC 258 (29 May 2020)