High Court dismisses judicial review as applicant failed to prove continuous employment for one year under EU worker status rules.

Neutral Citation: [2016] IEHC 206

THE HIGH COURT

JUDICIAL REVIEW

[2015 No. 190 J.R.]

BETWEEN

NECULAI TAROLA

APPLICANT

AND

MINISTER FOR SOCIAL PROTECTION

RESPONDENT

JUDGMENT delivered by Mr. Justice Michael White on the 18th March 2016

1. By order of leave of 13th April, 2015, the applicant was granted leave to apply by way of an application for judicial review for the

following reliefs:-

(i) An order of certiorari quashing the decision of the respondent of 31st March, 2015.

(ii) A declaration that the respondent erred in law and in fact in the decision of 31st March, 2015 in determining that the

applicant was required to be employed for more than twelve months and of sufficient independent resources to support

himself in order to qualify for job seekers allowance, in the premises that the applicant having been employed for two

weeks, retained the status of worker and thereby a right to reside, for a period of not less than six months, pursuant to

Article 7(3)(c) of Directive 2004/38 (transposed into Irish law as Article 6(2)(c)(iii) and 6(2)(d) of the European

Communities (Free Movement of Persons)(No. 2)(S.I. 656 of 2006)).

(iii) A declaration that the decision of the respondent of 31st March, 2015, is contrary to EU law, national law and the

ECHR.

(iv) An order pursuant to O. 84, r. 26(4) of the Rules of the Superior Courts, remitting the matter to the first respondent

with a direction to reconsider it and reach a decision in accordance with the findings of this Honourable Court.

2. The applicant duly issued a motion on foot of the order for leave on 25th April, 2015, returnable for 8th June, 2015.

3. In the statement of opposition of the respondent, it pleads that the applicant has not sought any relief in respect of the original

decision of 26th November, 2014, to refuse the applicant job seekers allowance and was thus out of time to seek judicial review in

respect of that decision in accordance with the provisions of O. 84, r. 21 of the Rules of the Superior Courts. The respondent also

denies that the applicant was entitled to any relief in his substantive application.

4. The applicant is a citizen of Romania and by law a citizen of the European Union. He is 56 years of age.

5. He first arrived in this State in 2007.

6. His record of employment in the State as an employee is as follows:-

5th Jul, 2007 – 30th Jul, 2007….Employed by Condor Recruitment Limited

15th Aug, 2007 – 14th Sept, 2007….Employed by DAR Golf Construction Limited

22nd Jul, 2013 – 24th Sept, 2013….Employed ASF Recruitment Limited

8th Jul, 2014 – 22nd Jul, 2014….Marren Brothers Limited

7. The applicant also worked as a self employed subcontractor from 17th November, 2014, to 5th December, 2014, the principal

contractor being Sapele Construction Limited.

8. The applicant in his grounding affidavit sworn on 7th April, 2015, states that since 2008, he had been in intermittent employment

but the employers did not pay any tax on his employment and that he was also relying on charity and the support of family and, in

particular on the Capuchin Day Centre over a period of seven years.

9. The applicant made a number of applications for social assistance on 21st September, 2013, he applied for a job seekers payment.

That application was disallowed because he was not habitually resident in the State. He failed to produce evidence of residency or

means of support from 15th September, 2007 to 22nd July, 2013.

10. The applicant applied for a supplementary welfare allowance from 26th November, 2013 and was asked for supporting

documentation as to how he supported himself and paid rent from September 2013 to 14th April, 2014 and was unable to supply

supporting documentation. His application for supplementary welfare allowance was refused under Statutory Instrument 412/2007,

Part 5, Articles 19 and 20 which related to the requirement that claimants supply information and adequate supporting documentation.

11. By application form of 6th November, 2014, the applicant sought job seekers allowance for a second time. His application was

refused on 26th November, 2014.

12. The reason for the refusal of job seekers allowance was that as an EU/EEA national, his residency in the State was governed by

EU law (S.I. No. 656 of 2006 – European Communities (Free Movement of Persons)(No. 2) Regulations 2006). Since he came to

Ireland, he has not worked for more than a year and does not have sufficient independent resources to support himself and that the

evidence produced does not substantiate his habitual residence in the State and led the respondent to conclude that his centre of

interest was not Ireland.

13. By letter from his then solicitors, Nahoi & Company, he sought a review of the decision of 26th November, 2014, pursuant to s.

301 of the Social Welfare Consolidation Act 2005, as amended.

14. The refusal was reviewed and by letter of 16th December, 2014, the respondent wrote to his solicitor and stated:-

“I have reviewed the decision of 26th November, 2014, under s. 301 of the Social Welfare Consolidation Act 2005, as

requested.

Mr. Tarola initially applied for job seekers allowance in September 2013. His application was refused as the deciding officer

found that he was not habitually resident in the State. Mr. Tarola appealed that decision. The appeal was disallowed.

Mr. Tarola again applied for job seekers allowance in November 2014. The only difference in Mr. Tarola’s circumstances

between September 2013 and November 2014 was that he had worked for two weeks in July 2014. This short period of

employment is not sufficient for a need to revise the decision of 26th November that Mr. Tarola is not habitually resident

in the State.”

15. By further letter of 10th March, 2015, from Cristina Stamatescu, Solicitor, application was made again to review the decision of

26th November, 2014. It was contended on his behalf that he had retained a right to reside as a worker for the purposes of S.I. 656

of 2006 for a period of six months after his employment in July 2004. Some new information was furnished to the respondent.

16. By letter dated 31st March, 2015, the respondent replied and stated:-

“As an EU/EEA national, Mr. Tarola’s residency in this State is governed by EU law of Statutory Instrument No. 656 of

2006 European Communities (Free Movement of Persons)(No. 2) Regulations 2006. Since Mr. Tarola came to Ireland, he

has not worked for more than a year and he did not have sufficient independent resources to support himself.”

17. The respondent has argued that the applicant failed to challenge the initial decision of 26th November, 2014. The applicant

submits that he used the statutory procedures to resolve the issues arising, in particular s. 301 of the Social Welfare Consolidation

Act 2005 (as amended) which provides that:-

“A deciding officer may at any time

(a) revise any decision of a deciding officer

(i) where it appears to him or her that the decision was erroneous

(I) in the light of new evidence or new facts which have been brought to his or her notice since the date on which the

decision was given, or

(II) by reason of some mistake having been made in relation to the law or the facts…’

18. The applicant further argued that it was confirmed in C.P., Castleisland Cattle Breeding Society v. Minister for Social and Family

Affairs [2004] IESC 40 and Maher v. Minister for Social Welfare [2008] IESC 15, that a claimant could seek a revision at any time and,

in C.P., that there were no implied temporal limitations. Further, a revision decision is then, itself, subject to an appeal, and that in In

Castleisland Cattle Breeding Society, the Supreme Court addressing the provisions of s.318 of the Act of 2005, which permit the Chief

Appeals officer to revise a decision, held that:-

“The Act does not appear to give any right of appeal to the High Court from the refusal of a chief appeals officer to revise

a decision, though no doubt in an appropriate case there might be grounds for judicial review.”

19. The applicant submits that the correspondence of 31st March, 2015 constitutes a decision for the purpose of judicial review and

that decision affects a legally enforceable right, namely: entitlement to Jobseeker’s Allowance, pursuant to s. 141 of the Social

Welfare Consolidation Act 2005 (as amended). Further, the Supreme Court in Castleisland Cattle Breeding Society held that an

unrevised decision was justiciable.

20. The applicant relies on s. 6(2)(c)(iii) of S.I. 656 of 2006 European Communities (Free Movement of Persons)(No. 2) Regulations

2006. This states:-

“subject to subparagraph (d), he or she is in duly recorded involuntary unemployment after completing a fixed-term

employment contract of less than a year or after having become involuntarily unemployed during the first year and has

registered as a job-seeker with a relevant office of the Department of Social and Family Affairs and FÁS.”

21. That section is a transposition of Article 7(3)(c) of the European Directive 2004/38/EC of the European Parliament and of the

Council of 29th April, 2004. This states:-

“For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the

status of worker or self-employed person in the following circumstances:-

…

(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a

year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker

with the relevant employment office. In this case, the status of worker shall be retained for no less than six months.”

22. The court has reviewed a number of judgments opened to it upon which the applicant relies. The applicant relies on the following

passages.

23. In Levin v. Staatssecretaris van Justitie (Case 53/81) European Courts of Justice at paragraph 17:-

“It should however be stated that whilst part-time employment is not excluded from the field of application of the rules on

freedom of movement for workers, those rules cover only the pursuit of effective and genuine activities, to the exclusion

of activities on such a small scale as to be regarded as purely marginal and ancillary . It follows both from the statement

of the principle of freedom of movement for workers and from the place occupied by the rules relating to that principle in

the system of the treaty as a whole that those rules guarantee only the free movement of persons who pursue or are

desirous of pursuing an economic activity.”

24. In Franca Ninni-Orasche v. Bundesminister für Wissenschaft, Verkehr und Kunst (Case 413/01) the court outlined the work history

of the applicant at paragraph 10:-

“From 6th July to 25th September 1995, Mrs Ninni-Orasche was employed in Austria for a fixed term as a waitress

authorised to act as cashier in an Austrian catering company. Aside from her duties as cashier, she was also responsible

for stocks of goods and for the ordering and storage of goods offered for sale. On 16th October 1995, she successfully

sat, in Italy, an examination completing a course of secondary school studies in the form of evening classes which

required her attendance only at the examinations. She thereby obtained a technical diploma (Maturità tecnica ─ Diploma

di ragioniere e perito commerciale) which entitled her to enrol at an Austrian university.

25. The applicant relies on paras. 23, 25, and 44 as follows:-

“23. First of all, it is settled case-law that the concept of worker, within the meaning of Article 48 of the Treaty, has a

specific Community meaning and must not be interpreted narrowly (see, to that effect, inter alia, Case 66/85 Lawrie-Blum

[1986] ECR 2121, paragraph 16, Case 197/86 Brown [1988] ECR 3205, paragraph 21, Case C-3/90 Bernini [1992] ECR I-

1071, paragraph 14, and Case C-337/97 Meeusen [1999] ECR I-3289, paragraph 13).

…

25. In the light of that case-law, it must be held that the fact that employment is of short duration cannot, in itself,

exclude that employment from the scope of Article 48 of the Treaty.

44. Thus, when examining whether the unemployment of the appellant in the main proceedings is voluntary or involuntary,

the national court may, in particular, take account of circumstances such as practices in the relevant sector of economic

activity, the chances of finding employment in that sector which is not fixed-term, whether there is an interest in

entering into only a fixed-term employment relationship or whether there is a possibility of renewing the contract of

employment.”

26. In Athanasios Vatsouras (C 22/08) Josif Koupatantze (C-23/08) Arbeitsgemeinschaft (ARGE) Nürnberg 900, the applicant has

referred to paras. 29 and 30 as follows:-

“29. Furthermore, with regard to the duration of the activity pursued, the fact that employment is of short duration

cannot, in itself, exclude that employment from the scope of Article 39 EC (see Case C-3/90 Bernini [1992] ECR I-1071,

paragraph 16, and Case C-413/01 Ninni-Orasche [2003] ECR I-13187, paragraph 25).

30. It follows that, independently of the limited amount of the remuneration and the short duration of the professional

activity, it cannot be ruled out that that professional activity, following an overall assessment of the employment

relationship, may be considered by the national authorities as real and genuine, thereby allowing its holder to be granted

the status of ‘worker’ within the meaning of Article 39 EC.

31. Were the referring court to reach such a conclusion in regard to the activities pursued by Mr Vatsouras and Mr

Koupatanze, the latter would have been able to retain the status of workers for at least six months subject to compliance

with the conditions laid down in Article 7(3) (c) of Directive 2001/38. The national court alone is responsible for factual

assessments of this kind.”

27. The Applicant also relies on passages from Barry v. South London Borough Council [2008] EWCA Civ 1440 [2009] PTSR at 952, to

support his case.

28. The court is satisfied that relatively short periods of employment, casual employment, and part time employment would qualify an

applicant for social assistance as a worker provided it is in pursuit of effective and genuine activity to the exclusion of activities on

such a small scale to be regarded as purely marginal and ancillary. In addition, it is for the court of trial to decide at the conclusion of

a fixed term contract if the person concerned is in voluntary or involuntary unemployment.

29. I am satisfied that the decision of the 31st March 2015 on review not to grant the Applicant jobseekers allowance is justiciable

and capable of challenge by way of judicial review.

30. I am satisfied that an appropriate interpretation of the Vatsouras case is that the two applicants had to satisfy the conditions laid

down in Article 7(3)(c) of the directive which included being party to a fixed term contract of less than a year. Ms Ninni Orasche had

been employed on a fixed term contract. I do not accept that the Barry case is authority for the submission that the worker had a

right to reside for six months after the cessation of his employment, as the case referred to eligibility conditions for social housing.

31. I am satisfied that the applicant’s reliance on s6(2)(c)(iii) would not qualify him as a worker and thus habitually resident for the

purposes of claiming social assistance as that particular section deals with persons who have been on fixed term contracts of

employment and that portion of the wording in the section “or after having become involuntary unemployed during the first year” is

not a stand alone phrase or sentence but is qualified and refers back to “completing a fixed term employment contract of less than a

year”.

32. Reviewing the applicant’s work history in Ireland, it is obvious he was employed as a casual labourer working infrequently and

accordingly, the period of employment with Marron Brothers Limited from 8th to 22nd July, 2014, could not be regarded as a fixed

term contract of employment.

33. In those circumstances, his entitlement to job seekers allowance was governed by s. 6(2)(c)(ii) which states:-

“he or she is in duly recorded involuntary unemployment after having been employed for more than one year and has

registered as a job-seeker with a relevant office of the Department of Social and Family Affairs and FÁS.”

34. In the circumstances, as the applicant had not been able to establish continuous employment for a period of one year prior to

applying for assistance, the decision of the respondent was correct in the circumstances to refuse his application for job seekers

allowance. Accordingly, the relief sought in the judicial review is refused.