Case Report G0142: Razneas v Chief Appeals Officer [2022] (10 JIC 1402)

Title of Payment:  Jobseekers Allowance

Date of Final Decision: 14 October 2022

Keywords: Jobseeker’s Allowance, EU citizen, worker status, residence, voluntary work, judicial review, European Convention on Human Rights Act.

Organisation who represented the Claimant:  Free Legal Advice Centre (FLAC)

Casebase no: G0142

Case summary:

This case concerned an appeal against a decision of the High Court in relation to a judicial review application, concerning a decision to refuse Jobseeker’s Allowance (“JSA”) to an EU citizen from another EU Member State living in Ireland.

The decision was made on the basis that the applicant did not have the ‘right of residence’ required to access the benefit under the s.246 Social Welfare Consolidation Act 2005.

The applicant, who is an EU national from Romania, had lived in Ireland since 2016. Due to personal circumstances, the applicant was required to enter the workforce. The applicant spent a trial period of 4 weeks carrying out voluntary work with a charity, the Mendicity Institution. The purpose of the trial was to demonstrate that the applicant had the capacity and commitment to move into a community employment scheme (the “CE Scheme”). The applicant did not receive any payment during the trial period but was provided with lunch each day. The applicant was unsuccessful in the trial period and the Mendicity Institution did not transfer her to the CE Scheme. The applicant then sought work unsuccessfully elsewhere and subsequently applied for JSA in July 2018. At around the same time, the applicant also made an application for residency in Ireland, which was refused.

The application for JSA was refused and her appeal to an appeals officer was unsuccessful. Following this, she made an application to the High Court for judicial review of the decision.

The decision of the High Court

The High Court decided that:

1. JSA amounted to a form of ‘social assistance’ rather than a ‘financial benefit’ intended to assist a person entering the labour market. Accordingly, a condition that a person seeking JSA had a ‘right to reside’ in Ireland was a legitimate and proportionate limitation within the meaning of EU law.
2. the appeals officer was correct to reach the conclusion that the applicant was not a ‘worker’, and therefore could not qualify for JSA under the Social Welfare Consolidation Act 2005.
3. the relevant provisions of the Social Welfare Consolidation Act 2005 were compatible with the Constitution and the European Convention on Human Rights (the “ECHR”).

The decision of the Court of Appeal

The applicant appealed the above decision of the High Court to the Court of Appeal.

The legal framework

The Court of Appeal looked at the legal framework, in particular the Residence Directive, the Coordination Regulation and the Social Welfare Consolidation Act 2005.

The Residence Directive provides EU citizens with the right of entry and residence in a Member State of the EU for up to three months under Article 6. It also provides, under Article 7, that EU citizens are allowed to stay for longer than 3 months provided that they are (a) workers or self-employed 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; or (c)are enrolled at an establishment for the purpose of study and have comprehensive sickness insurance cover and have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State; or (d) are family members accompany an EU citizen who has satisfied conditions in (a), (b) or (c). The Residence Directive requires that EU citizens to be treated equally to citizens from the host Member State (under Article 24(1)) with the exception of matters relating to ‘social assistance’. Article 24(2) states that host Member States are not required to give social assistance during the three-month period or the longer period, prior to the acquisition of a permanent right to residence. The Court, therefore, noted that a key concept of the Residence Directive is that of ‘social assistance’ and that if JSA qualified as ‘social assistance’, then the Member State is not under any obligation to provide access to measure for the first three months of residence or for the longer period. The Residence Directive is given effect to in Ireland under the Statutory Instrument 548/2015, the European Communities (Free Movement of Persons) Regulations 2015.

The Coordination Regulation deals with the coordination of social security systems with regards to the free movement of EU citizens, with the aim of improving the standard of living and conditions of employment. However, the Court noted that it does not go so far as to create a common scheme of social security. The Coordination Regulation provides that cash benefits payable under the legislation of one or more Member States shall not be reduced, suspended, withdrawn or confiscated on the basis that the person who is to benefit from it, or the members of his/her family, live in a Member State other than that of the institution responsible for the payment. The Coordination Regulation provides for the exclusion of certain types of ‘special non-contributory cash benefits’ from its scope and the annex to the Coordination Regulation (annex X) provides a list of such excluded payments with respect to Ireland including JSA, non-contributory State pension, widow and widower’s non-contributory pension, disability allowance, mobility allowance, and blind pension.  The applicant, argued however, that the Court should look at the substance of the payment and that its inclusion in annex X to the Regulation did not determine the issue.

The Court also noted that the Social Welfare Consolidated Act 2005 also classifies JSA as ‘social assistance’ in Part 3 of the Act. The Court noted that JSA is a means-tested payment to unemployed adults who prove that they are unemployed and capable of, available and are genuinely seeking employment. As part of this the person must be habitually resident in Ireland, and s. 246(5) provides that a person cannot be considered habitually resident where they do not have the right to reside in Ireland.

Key conclusions

The Court of Appeal decided as follows:

1. it agreed that JSA qualified as ‘social assistance’ and not a payment to facilitate access to the labour market;
2. the applicant did not qualify as a ‘worker’ within the meaning of the Residence Directive, due to the voluntary nature of the work carried out, and therefore did not have a right to reside in Ireland;
3. it was not a breach of the guarantee of equality in Article 40.1 of Constitution to deny the applicant access to JSA, as the applicant was not comparable with an Irish citizen and a person with the right to reside in Ireland; and
4.  the decision refusing JSA did not amount to a violation of the applicant’s rights under Article 8 and Article 14 of the ECHR.

Relevant Legislation:

• Social Welfare Consolidation Act 2005;
• European Convention on Human Rights Act 2003;
• Directive 2004/38 EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States; and
• Regulation 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems.

Key arguments:

The applicant argued that:

1. the decision of the High Court should be quashed in respect of the refusal of the applicant’s JSA application on the basis that JSA should not be characterised as a form of ‘social assistance’ and should, instead, be characterised as a payment intended to facilitate entry into the labour market as a matter of EU law;
2. the applicant should be considered a ‘worker’ as a matter of EU law due to the nature of the work carried out with the Mendicity Institution and accordingly has a ‘right to residence’ according to the Residence Directive;
3. the relevant provisions of the Social Welfare Consolidation Act 2005 regarding JSA which make it a pre-condition that a person must have a right to reside in the State to obtain access to JSA (namely section 246(5), (6) and (7)) are unconstitutional and contrary to Article 40.1 of the Constitution regarding the guarantee of equality and contrary to Articles 14 and 8 of the European Convention on Human Rights regarding the right to be treated equally and the right to family life respectively. In particular, the applicant submitted that the provisions of the Social Welfare Consolidation Act 2005 make no allowance for people in similar vulnerable circumstances as them and therefore these provisions are incompatible with the ECHR, given effect to by the European Convention on Human Rights Act 2003. As such, the applicant argued that she should be granted a declaration that s.246(5) of the Social Welfare Consolidate Act 2005 is incompatible with the European Convention on Human Rights Act 2003.

The respondent argued that:

1. JSA did constitute a form of ‘social assistance’ according to Irish law and EU law, rather than a payment to facilitate entry to the workforce. The respondent argued that the intention of JSA is to provide a minimum subsistence payment. In addition, the respondent argued that the applicant does not have a right to reside merely because she is a long-term jobseeker, rather they have a right not to be expelled under Article 14(4)(b) of the Residence Directive. This argument was made on the basis of the decision of the Court of Appeal in Munteanu v. Minister for Social Protection Ireland and the Attorney General, where the Court held JSA is a form of ‘social assistance’ and that therefore no reference was required to the Court of Justice of the EU with regards to the status of ‘social assistance’. This case also held that while JSA on its face was discriminatory in that Irish residents who lived in Ireland automatically satisfied the requirement of having the right to reside, the measure was justified on the basis of preventing persons from becoming an unreasonable burden on the State.
2. the applicant could not be classified as a ‘worker’ with regards to the work carried out in the Mendicity Institution, due to the voluntary nature of the work. In addition, they noted that the applicant did not meet the criteria of an employee, emphasising the absence of a contract. Furthermore, they noted that the Mendicity Institution was not an approved CE Scheme and does not operate or employ persons on CE Schemes.
3. there was no basis for the argument that the Social Welfare Consolidation Act 2005 was unconstitutional and contrary to the ECHR as needing to have the right to reside to qualify for JSA was a valid basis for a difference in treatment of two categories of persons.
4. there was no violation of the right to equal treatment in Article 14 of the ECHR as the precondition of having the right to reside was a proportionate and lawful condition.

Decision of the Court of Appeal:

Characterisation of JSA

The Court dismissed the appeal, agreeing with the High Court, that JSA is characterised as a form of ‘social assistance’ and not a payment designed to facilitate entry into the labour market. The Court held that as JSA is considered a form of ‘social assistance’ that Ireland is permitted to limit its application in accordance with annex X of the Coordination Regulation. The Court based this decision, not on the domestic classification of the payment, but on a detailed analysis of case-law which looked at the ‘nature, purpose and conditions’ of the JSA payment and which noted that the payment is intended to be social assistance for persons unable to provide for their own basic living costs during working age.

Characterisation of ‘worker’

With regards to the to the argument that the applicant was a ‘worker’ under EU law and therefore had a right to reside in Ireland, the Court held that, on the basis of EU case-law, the definition of ‘worker’ is not broad enough so as to include the voluntary arrangement the applicant had with the Mendicity Institution in April 2018.  While the Court noted that the level of income from the activity did not determine the status as worker, where the activity is solely a means to rehabilitate or re-integrate the person to allow them to take up ordinary employment, he or she cannot be considered a ‘worker’. In addition, the Court noted that a person who enters another Member State looking for work and who has not yet worked in the State cannot be considered a ‘worker’ due to their ‘job-seeking status’. Finally, the Court noted that participation in a community based on religion, or another philosophy could only be regarded as an economic activity, in some circumstances, where a person provides services to the community in return for accommodation, food and other basics of life which may then confer ‘worker status’ on the individual. However, the Court held that the applicant’s activities with the Mendicity Institution lacked the essential features of an employment relationship due to its voluntary nature and the fact it lacked remuneration, which is considered a key feature of EU case law. The Court distinguished the provision of daily lunch to EU case law where ‘full bed and board’ was provided to workers in return for their services.  In addition, the Court also noted that the Mendicity Institution workshop was not itself part of a CE Scheme and in any event, even if the applicant was part of a CE Scheme that this alone would not be enough to classify the applicant as a worker.

Reference to the Court of Justice of the EU

The Court held that there was no need to make a reference to the Court of Justice of the EU, noting that no point of EU law required clarification, as the law was settled with regards to the status of JSA and the definition of ‘worker’. The Court accepted that, while the applicant was genuinely seeking work, this makes no difference with regards to the relevant classifications.  

Compatibility with the Constitution of Ireland and the European Convention on Human Rights

With regards to the argument that there was a breach of Constitution, the Court held, firstly, that there is no constitutional right for an EU national from another Member State to social assistance in Ireland and secondly that that there was no breach to the guarantee of equality by denying the applicant JSA. This was on the basis that Irish citizens and persons with a right to resident in the state, on the one hand, and EU nationals who did not have a right to residence, on the other, were not considered comparable.

Similarly, the argument that the refusal of JSA amounted to a breach of the right to equality for the purposes of the Article 14 of the ECHR, was rejected by the Court on the basis that no argument was put forward to suggest that the differentiation amounted to discrimination prohibited by the ECHR. Similarly, no argument sufficiently demonstrated that there was a breach of Article 8 ECHR with regards to the right to family life. As such the appeal was dismissed.

Date of final Decision: 14 October 2022

Observations:

This decision has the implication that in order to qualify for JSA an applicant must have a right to residency in the State and furthermore highlights that voluntary work is not sufficient to give a person ‘worker status’ under EU law.

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