The High Court dismissed a judicial review application challenging the Chief Appeals Officer’s position that the Social Welfare Appeals Office could not refer a question to the Court of Justice of the European Union (CJEU).
Mr Justice Binchy ruled that the issue was moot in this case. The applicant had not identified a specific point of EU law for referral, and answering whether the appeals office was a “tribunal” under Article 267 of the Treaty on the Functioning of the European Union could not benefit him.
The judgment did not decide whether the office is a tribunal for that purpose. The court said that question could arise in a future case where a relevant point of EU law had been identified.
The applicant, a Romanian national, came to Ireland in 1996 and lived here until 2013. After returning to Romania to care for his terminally ill father, who died in 2016, he came back to Ireland in 2017 and applied for supplementary welfare allowance. His claim was refused because he was not considered habitually resident in the State. Appeals and subsequent reviews of that decision were unsuccessful.
In March 2018, his solicitors asked the Chief Appeals Officer to reconsider the matter or make a preliminary reference to the CJEU. The officer replied that the appeals process had concluded, that there was no question pending before the office for referral, and that the governing legislation did not give it power to refer matters to the CJEU.
The applicant then sought judicial review. He asked the court to quash the March 2018 decision insofar as it addressed the office’s referral power, declare that the office could make such references, and, if necessary, remit the matter for reconsideration. He accepted that success could bring only a reconsideration of whether a reference should be made; the judicial review did not challenge the earlier refusals of his welfare claim.
The respondents argued that the case was either a collateral challenge to those earlier decisions or academic because no substantive EU law question had been specified. The judge accepted the latter argument. Although submissions had referred generally to EU law, the applicant had not identified the legal point he wanted the CJEU to determine, and he did not ask the High Court itself to make a reference.
The court therefore dismissed the application. It did not rule on the applicant’s welfare entitlement or determine the appeals office’s general authority to make preliminary references.