The High Court has quashed a decision refusing to revise an appeals officer’s ruling on a disability allowance claim, finding that a dependent family member of an EU worker does not have to remain financially dependent on that worker after coming to Ireland.
The judicial review concerned the Chief Appeals Officer’s decision of 23 July 2019. The Appeals Officer had accepted that Georgeta Voican was financially dependent on her daughter before joining her in Ireland and had a derived right of residence. The Chief Appeals Officer declined to revise the decision, reasoning that her residence was conditional on not becoming an unreasonable burden on the State’s social assistance system.
Mr Justice Garrett Simons held that the required dependence had to exist in the family member’s country of origin when she applied to join the EU citizen. The court said it was common ground that Voican had depended on her daughter for financial support before joining her in Ireland. She therefore qualified as a dependent direct relative in the ascending line under the EU Citizenship Directive and had a right of residence derived from her daughter, a migrant worker.
The judge rejected the State’s argument that receiving social assistance would end that dependent status and remove the right to reside. He found that the Directive’s equal-treatment provisions entitled qualifying family members to claim social assistance on the same basis as nationals. A self-sufficiency condition applied to some other categories of EU residents, but not to a worker’s dependent family members lawfully resident for more than three months.
The court held that regulation 11 of the European Communities (Free Movement of Persons) Regulations 2015 was inconsistent with the Directive insofar as it imposed an unreasonable-burden condition on such a family member. That part of the regulation had to be disapplied. The judge did not determine the alternative challenges based on the Constitution or the European Convention on Human Rights.
The judge proposed an order quashing the Chief Appeals Officer’s decision and remitting the matter for reconsideration in accordance with the court’s findings, to be completed within six weeks of perfection of the High Court order. He also proposed a declaration that regulation 11 was inconsistent with the Directive and invited submissions on whether to set aside the regulation or strike out the offending words. The judgment did not itself award disability allowance. The parties were asked to seek agreement on the precise form of order and costs, with written submissions to follow if they could not agree.