A Romanian mother of two young children has brought a legal action alleging the Department of Social Protection’s grounds for the refusal to pay her various welfare benefits, including child benefit, breaches EU law.
The case raises “very weighty legal issues for this State” with implications far beyond this woman, her counsel Derek Shorthall BL told the High Court.
In refusing the benefits, Ireland had applied a “right to reside” test and the European Commission has brought infringement proceedings against the UK over the latter’s application of that test, on which an opinion of the Advocate General of the Court of Justice of the EU due in September, Ms Justice Iseult O’Malley was told.
In opposing the case, Ciarán Toland BL, for the department, argued it was significant the woman had not, in her benefit applications, a right to reside here. Several decisions of the Irish and European courts support the department’s application of the right to reside test, he argued.
It was important to distinguish between the three benefits and to note EU member states have considerable discretion relating to payment of social assistance, he said.
The woman, a member of the Roma community, says she came here in 2008 “in an effort to escape the cycle of poverty and discrimination which I lived with in Romania and to create a better life for myself and my children”.
She has survived to date by selling the Big Issue, begging and on charity food vouchers, she said. Her difficulties trying to survive in very difficult housing conditions were recognised by the HSE but, apart from some exceptional needs payments, she had received no welfare benefits.
Her family fled their home, “such as it was”, in Waterford last year when “angry gangs” of up to 100 people protested outside, smashed windows and kicked in the front door, she said. Her children, then attending primary and pre-school, were “terrified”.
She applied for Supplementary Welfare Allowance, Jobseekers Allowance and child benefit on various dates last year but was refused.
Mr Shorthall argued Ireland was not entitled to refuse benefits to the woman, an EU national, on foot of application of a test based on whether she has a right to reside in the State under the 2006 EC (Free Movement of Persons) Regulations.
Depending on the payment at issue, EU law applies different tests, he submitted. Entitlement to Jobseeker’s Allowance derives directly from various EU treaty provisions and is determined by reference to whether the person has a genuine link with the employment market of the relevant state, he said.
The test for social assistance was whether payment of that would impose an unreasonable burden on the relevant member state, plus a proportionality test, he said. The correct test for child benefit was whether or not the claimant was habitually resident within the relevant member state.
When considering eligibility for benefits, both the UK and Ireland first apply the “right to reside” test before moving on to consider the “habitual residence” condition and that is contrary to EU law, counsel argued. The right to reside test was a “blunt instrument” being applied irrespective of the purpose of a benefit payment.
Because the woman’s partner has secured employment in the last few weeks, with the effect she now has a right to reside, her claim is confined to an entitlement to retrospective payments but the core issue remains, counsel added. If the court finds for the woman, that does not mean she will get the benefits but rather her applications will be considered in accordance with the appropriate tests, he said.
In affidavits for the department, it was stated the benefits were refused because the woman did not satisfy the habitual residence legal pre-condition for payment of such benefits. The woman had not established she had a right to reside here under the relevant EC regulations, it said.
The department also queried the veracity of information provided on her application forms, including about her claims to have been here from 2008 and to have sold the Big Issue. Neither she nor her partner sought PPS numbers until summer 2012 when they said they arrived here in June 2011, it was stated.
The judge said she could not make findings of fact related to veracity as that issue was not raised with the woman when she was applying for the benefits and was not cited as a reason for refusal.
The case continues.
