Case Report G0158 – AN v Minister for Social Protection [2025] IEHC 479

Date of Final Decision: 22 August 2025

Keywords: Carer’s allowance; free movement of EU citizens; worker; engaged in economic activity;  right to reside

Organisation who represented the Claimant: N/A

Casebase No. Case G0158

Background

The applicant was a Romanian national who came to Ireland in September 2021 to reside with her daughter and son-in-law as a carer for her two grandsons who have serious special needs. The applicant applied for carer’s allowance and was refused on the basis that she was not habitually resident in the State when she made the application in January 2022. The applicant alleged that as a national of an EU Member State she has the right to travel to another Member State and reside there if she is a worker. She alleged that she was a worker, and as such was entitled to the carer’s allowance. The decision against the applicant was not overturned on appeal, following which she left Ireland and returned to Romania in May 2024, and obtained leave to bring judicial review proceedings in October 2024.

The applicant brought forward two issues before the High Court in the judicial review proceedings:

1. Whether she had a right to reside in the State, which depended on whether she was within the definition of ‘worker’ by providing 35 hours of care per week for her grandsons; and
2. Whether Ireland had properly transposed Directive 2004/38/EC into Irish law by the European Communities (Free Movement of Persons) Regulations 2015 (SI 548/2015)

Relevant Legislation

• Citizens’ Rights Directive 2004/38/EC (the “Directive”)
• European Communities (Free Movement of Persons) Regulations 2015 (SI 548/2015) (the “2015 Regulations”)
• Social Welfare Consolidation Act 2005
• Regulation (EC) 883/2004 on the coordination of social security systems.
• Regulation (EU) 492/2011 on the freedom of movement for workers within the Union.

By way of background, carer’s allowance is the main scheme by which the Minister for Social Protection provides income support to carers in the community. It is a means tested social welfare payment which is awarded to carers who are caring for certain people who require full-time care and attention. It is not related to the individual care requirements of the person receiving the care.

It provides an income replacement support to those whose ability to earn a sufficient income is substantially reduced because of their care obligations. The carer must provide at least 35 hours care in a seven-day period; the recipient of care must reach a threshold of disability; the carer must pass a means test; and the carer must be habitually resident in Ireland.

Key Arguments:

The applicant argued that:

1. The definition of a worker for the purposes of the Directive is wider that what may be considered the usual employment relationship in Irish law.
2. Regulation 6(3)(a)(i) of the Irish Regulations had impermissibly narrowed the scope of those who would be regarded as workers by making reference to a person who is “in employment or in self-employment”.
3. When she came to Ireland to care for her grandsons and was in return given board, lodging and expenses, this was sufficient to constitute remuneration for her work in looking after the children.
4. Even if she was not a worker, she came within the provisions of regulation 6(3)(a)(ii) of the 2015 Regulations for economically inactive people.

The respondent argued:

1. While there is a difference in the wording between the Directive and 2015 Regulations, the latter did no more than reflect how the term ‘worker’ had been interpreted by Court of Justice of the European Union (‘CJEU’) jurisprudence.
2. The rules on free movement of workers cover only those in the pursuit of effective and genuine activities.
3. The applicant’s assistance in caring for her grandchildren in return for board, lodging and expenses was not sufficient to constitute her as being engaged in an economic or commercial activity which is necessary to make the person.

Decision of the High Court:

The High Court held that the appeals officer was correct in holding that the applicant did not have a right to reside in Ireland as she was not a ‘worker’ under EU law. She was not engaged in an economic activity whereby she would provide services in return for remuneration. Her caring services for her grandchildren were entirely voluntary.

Regarding the issue of whether the Directive was properly transposed into Irish law, the High Court held that the 2015 Regulations captured the meaning of ‘worker’ as defined under EU law.

Key Conclusions:

Based on its analysis of EU and Irish law, the High Court noted that the requirements to be a worker are that the applicant would need to be engaged in work as part of an economic activity. There was no suggestion that the applicant was engaged in any economic activity on her own behalf or as part of any economic activity carried out by her daughter. Additionally, there was no evidence that she was in an employment relationship with her daughter and son-in-law as she provided care for her grandchildren on an entirely voluntary basis. The board, lodging and expenses she was provided with were within the context of her offering care voluntarily.

Counsel for the applicant suggested that the case should be referred to the CJEU to consider whether her work would constitute her a ‘worker’ for EU law. The High Court held that it was not necessary as the CJEU has given clear guidance to determining whether a person is a worker, and the request would amount to asking the CJEU to apply its tests to the facts of the case.

The test for economically inactive people requires them to establish that they have sufficient means to not become an unreasonable burden on the social assistance system and that they have comprehensive sickness insurance. The High Court held that carer’s allowance was social assistance as it is a payment designed to compensate those who are unable to access the labour market as a result of providing care. Additionally, her resources had been assessed at zero by the inspector, therefore she did not have sufficient resources to not become a burden on the social assistance system

Seeing as the applicant was not a worker within the context of EU law, the High Court also held that she did not have a right of residence as a result of not being a worker. Therefore, as she did not have a right of residence, she could not satisfy the requirement to be habitually resident in Ireland which is part of the eligibility criteria for receiving carer’s allowance.

The Court also held that there was no failure to properly transpose the provisions of the Directive into Irish law. While the wording in the 2015 Regulations differs from the wording in article 7 of the Directive, it was not relevant because the CJEU has held that the concept of ‘worker’ is confined to those engaged in economic activity.

Date of Final Decision: 22 August 2025

Observations:

The High Court noted that there was some unfairness in the practical reality of the decision. If the applicant had been an Irish citizen travelling from another part of the country to care for her grandchildren, she would have been eligible for the carer’s allowance. Yet as an EU citizen travelling from Romania to Ireland to do the same thing, she could be denied the payment because she unluckily fell foul of EU and Irish law on the right of residence.

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