Irish residence must be established for social welfare
Douglas -v- Minister for Social Protection
Neutral citation (2012) IEHC 27.
Judgment was delivered on February 6th, 2012, by Mr Justice Peter Charleton.
A UK citizen who had lived in the UK for 49 years before coming to Ireland to work and study, and who applied for social welfare, was not eligible for benefits as Ireland was not her habitual residence and she did not satisfy the criteria for payment.
The matter came before the High Court as an appeal under the Social Welfare Consolidation Act 2005 against the refusal of a social welfare appeals officer of the appellant’s application for jobseekers’ allowance and supplementary welfare allowance.
Paula Douglas, a UK citizen of Jamaican origin, came to Ireland from England on September 26th last year, after living all her life in Britain where she had been unemployed since July 2006.
She applied for social welfare almost immediately and was refused. She appealed this decision and also sought supplementary welfare allowance. Both applications were refused. She appealed these decisions to the appeals officer, who rejected the appeal.
Ms Douglas said she made a firm decision to move permanently to Ireland, giving up her flat in England, taking a long lease in Ireland and moving her furniture.
She said she intended to study here at DIT and later at the King’s Inns or Incorporated Law Society. She registered a phone here, had registered at a doctor’s surgery and attended a church in Dublin.
She claimed the refusal of her application constituted discrimination under EU law. She also said she was made feel like an illegal immigrant, and was offended by terms of the refusal of supplementary welfare allowance which included an offer to pay the cost of her repatriation to Britain.
Mr Justice Charleton said the case was not about any perception that the applicant was an illegal immigrant, which she was not. She was a British citizen and therefore welcome to come to Ireland as an EU citizen.
The issue was whether she was entitled to social welfare, and whether the original decision refusing it was undermined by a serious and significant error.
Section 246 of the 2005 Act provided for special treatment for people normally living in the UK, as part of the common travel area, requiring that a social welfare applicant was resident in Ireland or the common travel area for a continuous period of two years in order to qualify for social welfare payment.
However, this was amended in 2007 to exclude the common travel area from this entitlement.
Under the amended Act, in deciding on entitlement a deciding officer should take into account the length and continuity of residence in Ireland or any particular country; the length and purpose of any absence; the nature and pattern of employment; the person’s main centre of interest and their future intentions.
The issue of the applicant’s availability for work also arose. She had made it clear she would be studying, and her availability would be qualified by her need to attend up to 11 hours’ lectures a week. This meant she was not available in the ordinary course for all but occasional work during the week.
Mr Justice Charleton said that the case law of the European Court of Justice outlawed refusal of welfare benefits on the grounds of nationality. Such benefits could not be confined to the citizens of the granting state.
The European Court of Justice had ruled against a Belgian provision that limited social welfare payments to the holders of Belgian nationality. However, this did not arise here.
The state was entitled to require habitual residence, as the EU regulation used the phrase “the member state in which they reside”.
Such a restriction could operate against an Irish citizen who had lived abroad, or against a French citizen, based on criteria that included the length and continuity of residence, the nature and pattern of employment, where the main centre of interest of the person was and his or her future intentions.
Given these criteria and the fact that the applicant had lived all her 49 years in the UK up to a few months before the hearing, her intentions as they appeared, the nature and pattern of her employment and above all the length and continuity of her residence in the State, there was no serious and significant error in the original decision that would justify interfering with the decision of the appeals officer.
The court therefore rejected the appeal.
The full judgment is on courts.ie.
The appellant appeared in person.
The Minister for Social Protection was represented by the Chief State Solicitor