Case Report G0139: GV v Chief Appeals Officer (C-488 21)

Title of Payment: Disability Allowance

Date of Final Decision: 21 December 2023

Keywords: Preliminary Ruling; EU Citizenship Directive; Free Movement of Workers; Disability Allowance; Right to Reside; Dependant; Family Member; Beneficiaries; Unreasonable Burden

Organisation who represented the Claimant: KOD Lyons Solicitors

Casebase no: G0139

Case Summary:

By way of background, Casebase Report No. G0113 details the judicial review decision of the High Court in Georgeta Voican v. Chief Appeals Officer, Social Welfare Appeals Office, Minister for Employment Affairs and Social Protection, Ireland and the Attorney General [2019] No.748 J.R. The Respondents appealed the  High Court ruling to the Court of Appeal, who stayed proceedings in order to submit a preliminary reference to the Courts of Justice of the European Union (“CJEU”) under Article 267 TFEU.

The dispute concerns a Romanian national, GV, who is the mother of AC, another Romanian national residing in Ireland with Irish citizenship by naturalisation, and the question of whether GV, as a direct dependent of AC, is entitled to the payment of disability allowance in Ireland.

This judgment is that of C-488/21 GV v Chief Appeals Officer, in which the Grand Chamber of the CJEU delivered a preliminary ruling on the questions referred to it by the Court of Appeal.

The following questions were referred to the CJEU:

(i) Is the derived right of residence of a direct relative in the ascending line of a Union citizen worker within the meaning of the EU Citizenship Directive conditional upon the continued dependency of that relative on the worker?

(ii) Does the EU Citizenship Directive prevent a host Member State from restricting access to a social assistance payment benefit by a family member of a Union citizen worker who enjoys a derived right of residence on the basis of their dependency, where access to such payment would mean they are no longer dependent on the worker?

(iii) Does the EU Citizenship Directive prevent a host Member State from restricting such access to a social assistance payment benefit by a family member of a Union citizen worker who enjoys a derived right of residence on the basis of their dependency, on the grounds that payment of the benefit will result in the individual concerned becoming an unreasonable burden on the social assistance system of the State?

Relevant Legislation:

• Directive 2004/38/EC (“EU Citizenship Directive”), as implemented in Ireland by the European Communities (Free Movement of Persons) Regulations 2015;
• Regulation (EC) No 883/2004;
• Regulation (EU) No 492/2011;
• Social Welfare Consolidation Act 2005.

Key Arguments:

The Minister for Employment Affairs and Social Protection (the “Minister”) argued:

1. The concept of ‘family member’ within the EU Citizenship Directive includes the dependant direct relatives in the ascending line. Therefore, the parent of a Union citizen shall be a qualifying family member, and thus have a derived right to reside in the host Member State, for so long as they are dependent on the Union citizen.
2. The EU Citizenship Directive requires that a Union citizen may reside in the State as long as they do not become an unreasonable burden on the social assistance system of the State.
3. Once a Union citizen receives a social welfare benefit from the State, they: (a) cease to be dependent on their family member; and (b) become financially dependent on the social welfare system of that Member State. On that basis, their relationship of dependency on a family member ceases. Consequently, they fail to meet the requirements for a derived right of residence within the EU Citizenship Directive.

GV argued:

1. The requirement under Irish law that access to a social welfare benefit by a ‘family member’ within the meaning of the EU Citizenship Directive be contingent upon that person not becoming an ‘unreasonable burden on the social assistance system of the State’ is inconsistent with EU law; and
2. The position taken by the Minister amounts to a violation of GV’s right to equal treatment.

Decision of the Grand Chamber of the CJEU

The CJEU decided that the status of ‘dependent’ relative in the ascending line cannot be affected by the grant of a social assistance benefit in the host Member State. To decide otherwise would amount to accepting that the grant of such a benefit could result in the person concerned forfeiting the status of dependent family member and, consequently, justify the withdrawal of that benefit or even the loss of his or her right of residence. Such a solution would, in practice, preclude that dependent family member from claiming that benefit and would, for that reason, undermine the equal treatment accorded to the migrant worker.

Therefore EU law must be interpreted as precluding any national legislation of a Member State which allows for the refusal to grant a social welfare benefit to a direct relative who is dependent on an EU citizen worker at the time of making the application, or to withdraw their right to reside, on the grounds that  granting that benefit would have the effect that the family member in question would no longer be dependent on the worker and become an unreasonable burden on the social welfare system in that Member State.

Observations:

Now that the CJEU has clarified how the law in question is to be interpreted and applied by national courts, the Court of Appeal must consider the determination of the main proceedings in light of this binding clarification.

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