High Court dismisses carer's allowance claim where applicant failed to establish habitual residence as a worker under EU law.

[2025] IEHC 479

THE HIGH COURT

Record No. 2024/856JR

Record No. 2024/857JR

BETWEEN

A.N.

APPLICANT

AND

THE MINISTER FOR SOCIAL PROTECTION, THE SOCIAL WELFARE

APPEALS OFFICE, THE MINISTER FOR JUSTICE, IRELAND AND THE

ATTORNEY GENERAL

RESPONDENTS

AND

IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTY

JUDGMENT of Mr Justice Barr delivered electronically on the 22nd day of August 2025.

Introduction.

1. The applicant is a Romanian national. In September 2021 she came to Ireland with her husband to reside with her daughter and son-in-law. She did that for the purpose of providing care to her two grandsons, aged 10 and 7 years at present, who have serious special needs.

2. In these proceedings the applicant challenges the refusal of the first respondent to grant her carer’s allowance on the basis that she was not habitually resident in the State when she made an application for receipt of that benefit in January 2022. The first respondent held that the applicant was not habitually resident in the State because she did not have a right to reside in the State at that time.

3. The applicant alleges that under EU law a national of a Member State has a right to travel to another Member State and to reside there in if he/she is a worker as defined in EU law. The applicant alleges that she is a worker for the purposes of EU law and therefore has a right to reside in the State.

4. While other grounds have also been advanced by the applicant, which will be addressed in the judgment, the core issue in this case is whether in January 2022, the applicant had a right to reside in the State. The answer to that depends on whether, by providing 35 hours care per week for her grandsons, in return for which she was provided with board, lodging and necessary expenses by her daughter and son-in-law, that was sufficient to bring her within the definition of ‘worker’ for the purpose of EU law.

5. Ancillary to that issue is the argument put forward by the applicant that Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (hereinafter ‘the Directive’), which was transposed into Irish law by the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548/2015) (as amended) (hereinafter ‘the 2015 Regulations’), was not correctly transposed into Irish law by those regulations.

6. These are the core issues that must be decided in this case.

Chronology of Key Dates.

7. The key dates in this case can be summarised as follows: on 25 September 2013, the applicant’s daughter arrived in Ireland. She is employed as a nurse in a nursing home. Her husband is employed as a nurse manager in a separate health clinic. They have two sons who are currently aged 10 and 7 years. They each have autism and as a result have serious special needs.

8. On 1 September 2021, the applicant and her husband came to Dublin to help look after the children. The applicant had given up her job in Romania, where she had worked in HR/accounting in the financial sector. Her husband has a pension from Romania of approximately €119 per week.

9. On 28 January 2022, the applicant made an application for payment of carer’s allowance to her. This application was received by the first respondent on 2 February 2022.

10. Thereafter, further information concerning her application was furnished by the applicant to the first respondent on a number of occasions. On 3 May 2022, the deciding officer made a decision in which the applicant was refused payment of carer’s allowance.

11. The applicant appealed that refusal. Her appeal was unsuccessful in a decision delivered on 10 February 2023.

12. The applicant sought a review of the appeal decision. That was carried out by a separate appeals officer. In a decision dated 2 April 2024, the appeal decision was affirmed and the applicant’s application for carer’s allowance was refused. It is that decision that is challenged in these proceedings.

13. On 27 May 2024 the applicant and her husband left Ireland and returned to Romania.

14. On 14 October 2024, the applicant was granted leave from the High Court to bring these judicial review proceedings.

Background.

15. In her affidavit, sworn on 1 October 2024, the applicant gave the following account of how she came to give up her job in Romania and move to Ireland with her husband:

“On the 1 September 2021 I moved to Ireland to reside with my daughter, son-in-law and two grandchildren (names redacted) in order to provide full-time care to (names redacted), who are both severely autistic and require a very high level of care. My daughter and son-inlaw are in fulltime employment. They agreed that I would give up my job in Romania to move to Ireland to live with them and provide fulltime care to (names redacted) and that my daughter and her husband would provide my husband and I with accommodation and provide for all our material needs such as groceries, utilities, travel and any other living expenses, in return for my services within and on behalf of the family. I say that my daughter and son-in-law could not both have continued in full-time employment without me moving in with them to provide full-time care to (names redacted), which would have limited their income and ability to provide for their family.”

16. In an affidavit sworn by the applicant’s daughter on 1 October 2024, she stated that she and her husband receive some support from the Health Service Executive ('HSE’) towards the cost of providing therapies for their sons, but it is not enough. She stated that they had to pay for additional therapy privately. That therapy is very expensive, costing between €500-€1000 per week.

17. The applicant’s daughter gave the following account of how it was agreed between her and her mother that her mother would come to Ireland to care for her sons:

“I say that I work full time night shifts because my husband works during the day and there must always be someone available to care for the children given their exceptionally high needs. I cannot currently give up work because without my income we would be unable to afford to pay for the continuing therapies our children require. The weekly cost of therapies amount to between €500 and €1000. Our children need 24 hour care and supervision and the current situation whereby we are both working full-time at separate times, whilst providing constant care and attention for our children and meeting their very high needs, is so difficult. I come home from a night shift and my husband has to leave shortly afterwards to go to work, so I have no choice but to go without sleep after the night shift to provide for the children’s needs. Equally, my husband provides that care when I go to work. The situation is not sustainable in the long term and we are doing our very best. My mother was self-sufficient at the time of her application as we were providing for all her material needs, but owing to a change in our overall circumstances by way of ongoing and increased expenditure this was no longer possible. Her contribution to the family and household was invaluable and allowed us to maintain a proper family life and without her services we are really struggling. If she had been awarded carer’s allowance it would have benefited the children immensely as she was available to them constantly and looked after them and provided excellent and attentive care, which allowed us to provide for the family without going without sleep for periods like we do now.”

18. The applicant and her husband arrived in Ireland on 1 September 2021. It is accepted by the respondents that in the period 1 September 2021 to 27 May 2024, the applicant provided 35 hours care for her grandchildren each week. The respondents also accept that the children met the threshold for requiring care under the Social Welfare Consolidation Act, 2005 (as amended) (hereinafter ‘the 2005 Act’). The respondents also accept that the applicant comes within the means test criteria for carer’s allowance. In fact, her resources were assessed by the first respondent’s inspector as being zero.

19. As already noted, the applicant submitted her application for carer’s allowance on 21 January 2022. It was received by the respondent on 2 February 2022. After she had been interviewed by an inspector on behalf of the first respondent and having submitted further information as requested, her application was refused on 3 May 2022 on the grounds that she was not habitually resident in the State as she did not have any right of residence in the State.

20. Her application was also refused on the ancillary ground, which is relevant to those who seek to travel to the State from another Member State but who are not considered economically active, that she had not demonstrated that she had sufficient resources not to become an unreasonable burden on the social assistance system in the State.

21. As already noted, the applicant appealed that decision. Her appeal was turned down by a decision dated 10 February 2023. Thereafter, the applicant sought a review of that decision. It was determined against her on 2 April 2024. It is that

decision that is challenged in these proceedings.

22. On 27 May 2024, the applicant left the State. She described how she and her husband reached that decision as follows:

“I say that on 27 May 2024, I made the difficult decision to leave Ireland and return to Romania in circumstances where my daughter and son-inlaw were facing very high expenses and the family has many appointments and therapies, all of which are private, with little to no support from the HSE in respect of (names redacted) who have special needs. Although me and my husband were both self-sufficient at the time of our application, it was owing to the change in circumstances of my daughter and son-in-law and the very high cost of the therapeutic appointments of my grandchildren, that we returned to Romania on 27 May 2024.”

23. On 14 October 2024, the applicant obtained leave to proceed to challenge the

decision on review which had been delivered on 2 April 2024 by way of judicial review proceedings.

Carer’s Allowance.

24. It will be helpful to give a brief overview of carer’s allowance at this stage. Although ironically, this case is not about the right to carer’s allowance as such, it is about the right to reside in the State, which is a necessary precondition to receipt of carer’s allowance. Nevertheless, it will be of assistance to the reader to have some broad understanding of this social welfare payment.

25. The nature of carer’s allowance was helpfully outlined in the affidavit sworn on

11 February 2025 by Mr Kieran Lea, Principal Officer in the Department of Social Protection. In the affidavit, Mr Lea outlined how carer’s allowance is the main scheme by which the Minister provides income support to carers in the community. It is a means tested social welfare payment which is awarded to those carers who are caring for certain people who require full-time care and attention.

26. Carer’s allowance is intended to provide an income support for the carer. It is not related to individual care requirements of the person receiving the care. It is a payment which is funded from general taxation, rather than through specific PRSI contributions.

27. Mr Lea stated that the primary objective of carer’s allowance is to provide an income replacement support to people whose ability to earn a sufficient income, through paid employment or self-employment, is substantially reduced because of their caring responsibilities. He stated that it is not, and was never intended to be, a payment for the provision of care.

28. Mr Lea stated that the system of social protection supports, including carer’s allowance, provides payments based on an income need with the means test playing the critical role in determining whether or not income need arises as a consequence of a particular contingency, be that illness, disability, unemployment or caring.

29. In order to be entitled to carer’s allowance, a number of criteria have to be met as follows: the person must provide at least 35 hours care in any given period of seven days; the recipient of the care has to reach a threshold of disability requiring care; the person providing the care has to pass a means test meaning that their income must be below a certain level; and the person providing the care must be habitually resident in the State.

30. The requirement to be habitually resident in the State is dealt with in s.246 of the 2005 Act. It provides that in order to be eligible for the allowance, the person must be habitually resident in the State at the date of the making of the application and the person must remain habitually resident in the State after the making of that application in order for any entitlement to subsist.

31. Section 246(4) provides the criteria for determining whether a person is habitually resident in the State for the purposes of the Act. It provides that account will be taken of the following circumstances: the length and continuity of residence in the State or in any other particular country; the length and purpose of any absence from the State; the nature and pattern of the person’s employment; the person’s main centre of interest; and the future intentions of the person concerned as they appear from all the circumstances.

32. Section 246(5) of the 2005 Act provides that, notwithstanding sub-ss. (1) to (4) and subject to sub-s. (9), a person who does not have a right to reside in the State shall not, for the purposes of the Act, be regarded as being habitually resident in the State.

33. The current rate of carer’s allowance is €240 per week for providing care to one person. For providing care to two people, it rises to €360 per week.

34. Thus, as Mr Lea pointed out, carer’s allowance is not a payment at an economic level, coming out at approximately 50% of the hourly minimum wage. It is very often paid to a person in the same family as the person being cared for. It is designed to give them some compensation for the fact that due to their caring responsibilities they cannot earn an income in the normal labour market.

Relevant Statutory Provisions and Provisions of EU Law.

35. As already noted, s.180 of the 2005 Act provides that in order to receive carer’s allowance, the recipient must satisfy certain criteria, one of which is that they must be habitually resident in the State at the time when application is made for the payment and remain habitually resident in the State during the period when payment is made to them. As already noted, the concept of habitual residence is dealt with in s.246 of the 2005 Act. Its main provisions have been set out earlier.

36. Under EU law, nationals of Member States of the EU are deemed to be citizens of the EU. As such they have the right to travel to other Member States and to remain there for up to 3 months, subject to only very minimal administrative requirements. However, in order to remain for longer than that, a person must comply with the provisions of the citizenship Directive.

37. Article 7 of the Directive deals with the right of residence for nationals of a Member State to reside in another Member State for more than three months. It provides as follows: “All union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State.” 38. There are other categories of persons who are entitled to remain in a Member State for longer than three months, but they are not relevant to these proceedings.

39. The provisions of Art. 7 of the Directive are transposed into Irish law by regulation 6 of the 2015 Regulations, which provides as follows at reg. 6(3) (a): “(3)(a) A Union citizen to whom Regulation 3(1)(a) applies may reside in the State for a period that is longer than three months if he or she— (i)

is in employment or in self-employment in the State,

(ii) has sufficient resources for himself or herself and his or her family members not to become an unreasonable burden on the social assistance system of the State, and has comprehensive sickness insurance in respect of himself or herself and his or her family members.”

The Issues.

40. The core issues in this case are as follows: the applicant asserts that in finding that she did not have a right to reside in the State when she applied for carer’s allowance, the deciding officers and the two appeals officers, wrongly concluded that she was not a ‘worker’ within the meaning of EU law.

41. The applicant submits that the case law of the Court of Justice of the European Union (hereinafter ‘CJEU’) shows that the definition of ‘worker’ for the purposes of the Directive is an autonomous one under EU law. Furthermore, the court has emphasised that it is a term that must be given a wide definition.

42. In advancing this argument, counsel for the applicant placed significant emphasis on the decision of the CJEU in Steymann v Staatssecretaris van Justitie (Case C–196/87) where the applicant was a plumber, who was also the member of a religious community known as the Bhagwan community. He did work for the community in relation to their commercial activities which involved running a bar, a disco and a laundrette. In return, the applicant received board, lodging and pocket money from the community. The CJEU held that in these circumstances he was a ‘worker’ within Art. 2 of the Treaty.

43. The question which had been referred by the Raad van State, was to what extent activities performed as a member of a religious community may be regarded as economic activities or services within the meaning of the Treaty. The court noted that the applicant’s contribution to the life of the Bhagwan community consisted of the performance of plumbing work on the community’s premises and general household duties. He also took part in the community’s commercial activities.

44. The court began its analysis by observing that, in view of the objectives of the European Economic Community, participation in a community based on religion or any other form of philosophy fell within the field of application of community law only insofar as it could be regarded as an economic activity within the meaning of Art.

2 of the Treaty. The court noted that the pursuit of an activity as an employed person or the provision of services for remuneration must be regarded as an economic activity within the meaning of Art. 2. In relation to the activities carried out by the applicant, the court noted that the documents indicated that the activities consisted of work carried out within and on behalf of the Bhagwan community in connection with the Bhagwan community’s commercial activities. It appeared that such work played a relatively important role in the way of life of the Bhagwan community and only in special circumstances could members of the community avoid taking part therein. In return the Bhagwan community provided for the material needs of its members, including pocket money, irrespective of the nature and extent of the work which they did.

45. The court stated that on the facts before it, it was impossible to rule out a priori the possibility that work carried out by members of the community in question constituted an economic activity within the meaning of Art. 2 of the Treaty. The court held that insofar as the work, which aimed to ensure a measure of selfsufficiency for the community, constituted an essential part of participation in that community, the services which the latter provided to its members may be regarded as being an indirect quid pro quo for their work.

46. The court noted that in Levin v Staatssecretaris van Justitie [1982] ECR 1035, it had been held that the work must be genuine and effective and not such as to be regarded as purely marginal and ancillary. It noted that in the case before it, the national court had held that the work was genuine and effective. The CJEU gave its conclusion on this question in the following way at para. 14: “Accordingly, the answer given to the first question must be that Article

2 of the EEC treaty must be interpreted as meaning that activities performed by members of a community based on religion or another form of philosophy as part of the commercial activities of that community constitute economic activities in so far as the services which the community provides to its members may be regarded as the indirect quid pro quo for genuine and effective work.”

47. It was submitted by counsel for the applicant that the decision in the Steymann case showed that the definition of worker for the purposes of the Directive, and, in particular, as the beneficiary of a right to reside in another Member State, is wider than what may be considered the usual employment relationship at Irish law where an employed person provides services in return for wages.

48. It was submitted that insofar as regulation 6(3)(a)(i) attempted to transpose Art.

7 of the Directive by reference to a person who is “in employment or in selfemployment” in the State, the regulations had impermissibly narrowed the scope of those who would otherwise be regarded as workers within Art. 7(1)(a) of the Directive, which referred to “workers” or self-employed persons.

49. It was submitted that when the applicant had agreed to come to Ireland and to care for her grandsons, in return for which she would be given board, lodging and expenses, that was sufficient to constitute remuneration for her work in looking after the children; thereby constituting her a worker for the purposes of the Directive; thereby meaning that she had a right to reside in the State.

50. In response, Ms Carroll SC on behalf of the respondents submitted that while there is a difference in the wording between the Directive and the Irish regulations, the latter did no more than reflect how the term “worker” had been interpreted by the CJEU in its judgments.

51. It was submitted that it was clear from the judgments of the CJEU that the rules on free movement of workers cover only those in 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 was submitted that the case law made it clear that the rules under the Treaty and the Directive guarantee the free movement of persons to persons who are desirous of pursuing an economic activity as a worker.

52. In support of that proposition, counsel for the respondents referred to a number of cases where participation in various work schemes as part of a rehabilitation or training scheme had been held not to constitute the participant thereon as being a worker for the purposes of the Directive.

53. It was submitted that in this case, where the applicant had come to Ireland to give assistance to her daughter and son-in-law in caring for their children with special needs, in return for which she was provided with board, lodging and expenses, that was not sufficient to constitute her as being engaged in an economic or commercial activity which is necessary to make the person a worker for the purposes of the Directive.

54. It was pointed out that in the Steymann case the applicant had been found to have provided services as part of the commercial activities carried on by the Bhagwan community.

55. It was submitted that there had been no failure to properly transpose the Directive into Irish law. It was submitted further that the applicant did not comply with the clear criterion laid down by the decisions of the CJEU as to what constituted a worker for the purposes of the Directive.

56. In this regard, counsel referred to the decision of the Court of Appeal in Razneas v Chief Appeals Officer [2022] IECA 227, where the court had set down a clear definition of what constituted a worker under EU law. Counsel referred to the summary of principles that had been set down in the decisions of the CJEU as set out at para. 82 of the judgment and to the following principle set out at number (v) thereof: “Participation in a community based on religion or another form of philosophy falls within the field of application of community law only insofar as it could be regarded as an economic activity; in some circumstances, where the person provides services to the community in return for accommodation, food and other basics of life may confer the status of ‘worker’ upon the individual who provides the services.” 57. By way of ancillary ground, it was submitted on behalf of the applicant that if she was deemed not to come within the provisions of reg. 6(3)(a)(i) of the 2015 Regulations in relation to being a worker; she came within reg. 6(3)(a)(ii) which confers a right of residence on people who are not economically active if they can establish that they have sufficient resources not to become an unreasonable burden on the social assistance system of the State and have comprehensive sickness insurance in respect of herself and her family members.

58. The applicant essentially made three submissions in this regard: first, that carer’s allowance is not within the definition of social assistance as required by the regulations, because it is an income support payment. In this regard counsel referred to the decision of the CJEU in Pensionsversicherungsanstalt v Peter Brey (Case C– 140/12) where it was held that the concept of assistance must be interpreted as covering all assistance introduced by public authorities, whether at national, regional or at local level, that can be claimed by an individual who does not have resources sufficient to meet his own basic needs and the needs of his family; and who, by reason of that fact, may become a burden on the public finances of the host Member State during his period of residence and, which could have consequences for the overall level of assistance which may be granted by that State.

59. Counsel submitted that carer’s allowance was not a payment designed to cater for a person’s basic needs, which is a pre-requisite for it to be deemed as a social assistance payment. Counsel submitted that the purpose of carer’s allowance was predominantly to recognise and compensate for the significant contribution made by people who provide full-time care and attention to someone who needs it due to age, illness, disability, or other similar reasons; and in so doing, to support the ongoing care of the person in respect of whom care is being provided such as helping to cover some of the costs associated with providing care. The payment is not intended to ensure a minimum means of subsistence for its recipient. Carer’s allowance may not therefore be subject to the unreasonable burden test.

60. In support of this submission counsel referred to the income thresholds that were applicable from July 2025, which provide that a recipient of carer’s allowance, in meeting the means test requirement, is entitled to disregard €625 per week, which is equivalent to an annual income of €32,500 for a single person. For carers with a spouse or partner, that amount is increased to €1,250 per week, which equates to an annual income of €65,500. It was submitted that in view of these thresholds, it could not be argued that carer’s allowance is a payment designed to cater for a person’s basic needs.

61. In support of this submission, counsel also referred to Regulation 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems. It was submitted that because carer’s allowance had not been included by the first respondent in Annex 10 to that regulation as provided for under Art. 70, it therefore meant that carer’s allowance was not a special noncontributory cash benefit as provided for in that regulation and was therefore social assistance for the purposes of the citizenship directive.

62. The applicant’s second submission was that the appeals officer had applied the wrong test in addressing the question as to whether the applicant had sufficient resources such as not to become an unreasonable burden on the social assistance system in the State. It was submitted that the appeals officer had only referred to the fact that the applicant had no sources of income in Ireland, was a joint owner of property in Romania worth approximately €20,000, and her husband had a pension in Romania of approximately €119 per week. It was submitted that the appeals officer had failed to have regard to the fact that the applicant’s accommodation and subsistence needs were being catered for by her daughter and son-in-law.

63. It was submitted that in these circumstances, the appeals officer had failed to carry out an examination of the totality of the applicant’s circumstances and had failed to carry out any assessment of the specific burden which granting the benefit would place on the social assistance system as a whole.

64. It was submitted that not only must an assessment of whether the union citizen would be likely to become a burden on the State’s social assistance system be carried out, but if this was determined in the affirmative, it must then be determined whether that burden would be an unreasonable one. It was submitted that this was a two-stage assessment which the appeals officer had failed to carry out.

65. On behalf of the respondent, it was submitted in response that whether or not carer’s allowance was listed as a special non-contributory cash benefit for the purpose of Regulation 883/2004, did not determine that it did not form part of the social assistance system of the State.

66. It was submitted that the obligation not to be an unreasonable burden related to the social assistance system in operation in the host Member State. The key word was “system”, not “assistance”. In particular, the concept of the social assistance system must be interpreted as covering all assistance introduced by the public authorities whether at national, regional or local level that can be claimed by an individual who does not have resources sufficient to meet his own basic needs and the needs of his family and who, by reason of that fact, may become a burden on the public finances of the host Member State.

67. It was submitted that the CJEU had determined that payments which are intended to facilitate access to the labour market, could not be regarded as social assistance. In contrast, it followed that a payment which is not intended to facilitate access to the labour market, such as carer’s allowance, came within the scope of the “social assistance system of the host Member State”.

68. It was submitted that when one examined the nature and purpose of carer’s allowance, it was evident that it came within the scope of the criteria discussed by the CJEU. Carer’s allowance was payable within Part 3 of the 2005 Act, which was directed at social assistance payments. It is a payment which is funded by general taxation rather than through the payment of social insurance contributions. It is subject to a means test based on an income need. It was submitted that the purpose of carer’s allowance is to provide an income support to people whose ability to earn a sufficient income through paid employment or self-employment is substantially reduced as a consequence of their caring responsibilities. It was submitted that it is not a payment which is intended to facilitate entry to the labour market.

69. It was submitted that carer’s allowance is a payment which is directed to the individual “who does not have sufficient resources to meet…basic needs” as their ability to earn a sufficient income in the labour market is constrained by the care in which they are engaged.

70. Counsel referred to the decision in Munteanu v Minister for Social Protection [2019] IECA 236 where the key issue was whether the payment in question, in that case jobseekers’ allowance, was intended to facilitate access to the labour market. Where it was not, it was considered to be social assistance. It was submitted that the same could be said of carer’s allowance, which was not intended to facilitate access to the labour market. Accordingly, it came within the scope of “social assistance system of the host Member State” and is subject to an unreasonable burden test.

71. In relation to that issue, it was submitted that the applicant had to demonstrate that she had sufficient resources not to become an unreasonable burden on the social assistance system in the State. It was submitted that in the present case, the applicant’s resources had been assessed as being zero. That had not been contradicted by the applicant. It was submitted that in such circumstances, it could not be contended that she would not become an unreasonable burden on the social assistance system in the State. It was submitted that the Brey case established that the competent national authorities had the power to assess this aspect by taking into account a range of factors in light of the principle of proportionality, whether the grant of a social security benefit could place a burden on that member’s social assistance system as a whole. Counsel also referred to the decision in Griga v Chief Appeals Officer [2017] IEHC 602, where Noonan J had considered Art. 7 of the Directive and, in discussing the Brey case, had held that the host Member State was entitled to consider future, not simply past, reliance on the State’s resources under Art. 7(1)(b). He held that that article clearly envisaged that in assessing an application for assistance, and by inference whether the unreasonable burden test was satisfied, the host Member State was having regard prospectively to the likely duration of the benefits which might be granted in the future.

72. Counsel submitted that the assessment of whether an applicant will be an unreasonable burden on the social assistance system of the State, was not only based on an assessment of the individual circumstances of the applicant, but also involved a consideration of the effect of granting the benefit sought to all others in similar circumstances. It was submitted that in the present case the applicant had not demonstrated that she had sufficient resources to support herself. The evidence pointed to the fact that her need for social assistance was not going to be limited in duration and that long-term support would be required. It was submitted that in these circumstances the appeals officer had been perfectly entitled to come to the conclusion that she did not have resources sufficient to prevent her becoming an unreasonable burden on the social assistance system in the State.

Discussion and Conclusions.

73. Before coming to the main issues, I will deal with some preliminary matters and objections. First, the respondent submitted that the application should fail in limine or that relief should be refused, because the applicant had not pursued all available statutory remedies. In particular, she had not either sought a further review by the Chief Appeals Officer or pursued an appeal to the High Court on a point of law as provided for under the 2005 Act.

74. It was submitted that it was well settled at law where a statute had provided an internal method of appeal or review or where the statute had provided for a further appeal to the High Court, a party dissatisfied with a decision should proceed by either of these methods rather than proceed by way of separate judicial review proceedings.

75. It was submitted that as the applicant had had the option of seeking a further review by the Chief Appeals Officer or had the option of proceeding by way of an appeal on a point of law to the High Court, this Court should refuse to grant relief in these proceedings.

76. In response, it was submitted on behalf of the applicant that she was entitled to proceed by way of judicial review because having obtained three negative decisions as part of the internal appeal process, it was reasonable for her to assume that she would not receive a positive decision by pursuing a further appeal within that system.

77. It was submitted that the applicant could not bring a statutory appeal to the High Court on a point of law, as one of her grounds of challenge to the decision of 2 April 2024, was that if the appeals officer had correctly interpreted the 2015 Regulations, then Ireland had failed to properly transpose the Directive into Irish law. That was an issue that the appeals officer could not determine, therefore it could not be raised on a statutory appeal to the High Court. It had to be raised by way of separate judicial review proceedings.

78. Insofar as the respondent had submitted that the appropriate course to follow in such circumstances was to have brought an appeal either within the system, or to the High Court under the 2005 Act, together with parallel judicial review proceedings on the transposition point, that had been recognised in the decision in Petecel v Minister for Social Protection [2020] IESC 25 as being an overly burdensome procedure to impose on an applicant.

79. I accept the submission of the applicant on this objection. It is reasonable that she anticipated that she was unlikely to obtain a favourable outcome within the internal appeals system when she had already received three negative decisions.

80. I accept the applicant’s argument that as she wished to raise the transposition point, she had to proceed by way of judicial review proceedings. In such circumstances, it was not an abuse of process to bring all claims in the one set of proceedings, rather than bringing an appeal to the High Court on a point of law, with parallel judicial review proceedings on a transposition point. Accordingly, I reject this ground of objection taken by the respondents.

81. The second issue which arose in the course of the hearing concerned whether the proceedings herein had become moot by virtue of the fact that the applicant had returned to Romania in May 2024. It was accepted by all parties that her entitlement to receive carer’s allowance, if it had ever existed, would have ceased at that date. It was further accepted on behalf of the applicant that any entitlement that she may have to carer’s allowance in the future would be dependent upon her submitting a fresh application in that regard.

82. However, both parties were of the view that a live dispute continued to exist in relation to the eligibility of the applicant for carer’s allowance on the date of her application, being 2 February 2022, and continuing until her departure from the State on 27 May 2024.

83. I accept that if the applicant is successful in these proceedings, the matter would be remitted back to an appeals officer to look again at her application as of the date of its submission and her entitlement to receive carer’s allowance up to 27 May 2024. If determined in her favour, this could lead to the applicant obtaining an award of arrears of carer’s allowance if she was to be successful in both these proceedings and at the remitted appeal hearing.

84. I note that in the Razneas case the applicant had obtained employment by the time of her appeal in relation to the refusal to award her jobseekers’ allowance. Her appeal was not deemed moot on that account, although the issue of mootness does not appear to have been raised or considered. In any event, I am satisfied that as both parties contend that there is still an extant live dispute between them which could result in a material benefit to the applicant, these proceedings are not moot.

85. I turn now to the central issue in this case, which is whether the applicant had a right to reside in the State when she made her application for carer’s allowance in January/February 2022. That depends on whether she comes within the provisions of Art. 7 of the Directive and reg. 6 of the 2015 Regulations. The first issue that arises is whether she was a ‘worker’ within the meaning of the Directive and/or the regulations at that time.

86. The issue as to whether the applicant comes within the definition of a ‘worker’ having a right to free movement and residence in a Member State has come before the CJEU on many occasions, very often in the context of whether they have a right to receipt of social welfare payments in their host country.

87. In the Levin case, the CJEU stated as follows at para.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.”

88. On 5 October 1988, the CJEU delivered its judgment in the Steymann case. That judgment has already been examined earlier in the judgment. It will not be repeated here.

89. In May 1989, the CJEU delivered its judgment in Bettray v Staatssecretaris van Justitie (Case C–344/87). In that case the applicant, due to his drug addiction, was employed on a social welfare scheme run by the local authority. Under the scheme work was provided for him as a means of rehabilitating him into the normal labour market. The court held that the definition of ‘worker’ under EU law has an autonomous meaning and must be given a broad interpretation (para. 11). The court held that the rules providing for freedom of movement for workers, was only for persons pursuing or wishing to pursue an economic activity. They stated as follows at paras. 12 and 13: “According to the same judgment, that concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned, and the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.

13. It is clear both from the terms in which the principle of freedom of movement for workers is expressed and the place occupied by the provisions concerning that principle in the structure of the Treaty that those provisions guarantee freedom of movement only for persons pursuing or wishing to pursue an economic activity and that, consequently, they cover only the pursuit of an effective and genuine activity (see judgment of 23 March 1982 in Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035).”

90. The CJEU went on to conclude that participation on a scheme that was designed to rehabilitate a person so as they could ultimately enter the labour market, did not constitute them a worker within the meaning of the Treaty.

91. A similar conclusion was reached in Trojani v Centre Public d’Aide Sociale de Bruxelles (Case C–456/02) where the applicant had been doing 30 hours work per week for a Salvation Army hostel as part of a rehabilitation programme, in return for which he got benefit in kind (presumably board and lodging) as well as pocket money. The CJEU reiterated that the concept of ‘worker’ within the Treaty had a specific community meaning and must not be interpreted narrowly. It held that a person who pursued activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. They held that the essential feature of an employment relationship was, according to the case law, that for a certain period a person performs services for, and under the direction of another in return for which he received remuneration.

92. The court went on to hold that activities could not be regarded as a real and genuine economic activity, if they constituted merely a means of rehabilitation or reintegration for the person concerned. The court dealt with the provision of benefits in kind in the following way at para. 22:

“Having established that the benefits in kind and money provided by the Salvation Army to Mr Trojani constitute the consideration for the services performed by him for and under the direction of the hostel, the national court has thereby established the existence of the constituent elements of any paid employment relationship, namely subordination and the payment of remuneration.”

93. The court answered the question posed to it by stating that a person can claim a right of residence as a worker within the meaning of Art. 39 EC only if the paid activity he carries out is real and genuine. They held that it was for the national court to carry out the examinations of fact necessary to determine whether that was so in the case before it.

94. Finally, in a Razneas v Chief Appeals Officer the Court of Appeal had to look at the issue of whether the applicant was a worker when she was participating on a trial scheme to see if she was suitable for admission to a community employment scheme. The woman had been on a one-month trial with a mendacity institution where she was not paid, and her attendance was voluntary. She was only provided with lunch. It was a trial to see if she was suitable to be admitted to a Community Employment Scheme (hereinafter ‘CE scheme’). The court held that that did not constitute her a ‘worker’ within the meaning of EU law.

95. Having analysed the relevant decisions of the CJEU, Ní Raifeartaigh J summarised the applicable principles in the following way at para 82:

“The principles from the above authorities may be summarized as follows:

(i) The concept of a “worker” is broadly defined, but it must conform to objective criteria which distinguish the employment relationship with reference to the rights and duties of the persons concerned, and the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration;

(ii) The fact that the activity yields an income level lower than that which is considered the minimum required for subsistence is not determinative, provided the activity is as an employed person which is “effective and genuine” and not “marginal and ancillary”;

(iii) If the activity is solely a means to rehabilitate or re-integrate the person so as to recover his or her capacity to take up ordinary employment or to lead as normal as possible a life, he or she cannot be considered a “worker”;

(iv) A person who enters a Member State looking for work, who has not yet worked in that State, does not constitute a “worker” simply by virtue of his or her jobseeking status;

(v) Participation in a community based on religion or another form of philosophy falls within the field of application of Community law only insofar as it could be regarded as an economic activity;

in some circumstances, where the person provides services to the

community in return for

accommodation, food and other basics of life may confer the

status of “worker” upon the individual who provides the

services.”

96. In applying those principles, the Court of Appeal held that the applicant was not a worker within the meaning of EU law. The court noted that the reality of her relationship with the mendacity institution was that she had no rights or duties as such. She could, and did attend daily, but it was on a voluntary basis. The court held that the essential feature of remuneration was absent. The court did not consider that the provision of lunch and a hope of a place on a CE scheme in the future, could be considered remuneration in the EU law sense.

97. Applying the decisions of the CJEU and of the Court of Appeal in the Razneas case, I hold that the concept of worker for the purposes of EU law is an autonomous concept, which must be given a broad definition. The case law makes it clear that it only covers people who are engaged in work as part of an economic activity.

98. It is for that reason that people participating in rehabilitation or reintegration schemes are not covered by the definition. In the Razneas case, one of the relevant factors was the fact that the applicant was on an unpaid voluntary scheme. She was free to attend, or not, as she wished. Although she carried out work when she did attend, that was not part of any economic or commercial activity carried on by her. It was merely part of her trial to see if she would be suitable for admission to a CE scheme.

99. I accept that remuneration need not be by payment of wages. The decision in Steymann makes that clear. However, the reason why the applicant in that case was deemed to be a worker, was because he provided services as a plumber as part of the economic activity of the community and he helped out in the bar, disco and launderette, which the community ran on a commercial basis.

100. In the present case, there is no suggestion that the applicant is engaged in any economic activity either on her own behalf, or as part of any economic activity carried on by her daughter. Nor is there any evidence that she is in an employment relationship with her daughter and son-in-law, whereby she acts under their direction in return for board and lodging.

101. The facts are clearly set out in the affidavits sworn by the applicant and her daughter. The applicant answered her daughter’s request to provide help looking after her children with special needs. The applicant left her job in Romania. She voluntarily came to Ireland. She provided care for her grandchildren on an entirely voluntary basis. While she was provided with board, lodging and expenses, there is no suggestion that there was any employment relationship between the applicant and her daughter.

102. The case law of the CJEU as reviewed above, clearly establishes that the fundamental requirement of being a ‘worker’ for the purposes of EU law, is that the person must be engaged in an economic activity whereby they provide services under the direction and control of another, in return for which they receive remuneration, which may be in cash or in kind.

103. That is entirely lacking here. In this case, the applicant voluntarily provided her services for her daughter so that she and her husband could work as many hours as they could so that they could pay for private therapy for their two boys. It is the kind of thing that family members do every day. They may travel and help family members who have particular challenges at any given time. That does not convert them into ‘workers’ for the purposes of EU law.

104. The provision of caring services by the applicant for her grandchildren was entirely voluntary. She had no contractual duty to provide these services. She was free to cease providing care for her grandchildren, as she did in May 2024, for the reasons set out in her affidavit.

105. I hold that the appeals officer was correct to hold that the applicant did not have a right to reside in the State as she did not come within reg. 6(3)(a)(i) of the 2015 Regulations. She did not have that right, because she was not a ‘worker’ as defined in European law. As she did not have the right to reside in the State, she could not satisfy the requirement to be habitually resident in the State, which is part of the eligibility criteria for receipt of carer’s allowance.

106. Insofar as it is alleged that there was a failure to properly transpose the provisions of the Directive into Irish law in the 2015 Regulations, I hold that having regard to the judgments of the CJEU and the judgment of the Court of Appeal in the Razneas case, there has not been a failure to properly transpose the Directive into Irish law.

107. While the wording used in reg. 6 of the 2015 Regulations, which refers to a person who “is employed or in self-employment in the State”, differs from the wording in Art. 7 of the Directive, I hold that the difference in wording is not relevant because the CJEU has held that the concept of ‘worker’ is confined to those in some form of employment relationship, who are engaged in some form of economic activity. I hold that the Irish regulations capture the meaning of ‘worker’ as defined under EU law. Therefore, I hold that there has been no failure to properly transpose the Directive into Irish law.

108. At the hearing of this matter, counsel for the applicant requested that the court should refer a question to the CJEU on whether the work done by the applicant for her daughter and son-in-law could constitute her a ‘worker’ for the purposes of EU law.

109. I am not satisfied that it is appropriate or necessary for me to make such a reference. As had been found in the Razneas case, where a similar request for a reference had been made, the CJEU has furnished clear guidance as to how the assessment as to whether a person is a worker within the meaning of EU law is to be carried out. Any reference to that court would in effect amount to requesting the CJEU to apply its own tests to the facts of this particular case. Accordingly, I refuse to make any reference on this point.

110. Turning to the applicant’s second main ground of challenge, which was to the effect that she came within the provisions of reg. 6(3)(a)(ii) for economically inactive people; the arguments of the parties have been summarised above and will not be repeated here.

111. I accept the submission on behalf of the respondent that to obtain a right of residence under this Regulation a person must establish two things: (a) that they have sufficient means not to become an unreasonable burden on the social assistance system in the State; and (b) that they have provided evidence of holding comprehensive sickness insurance.

112. The first issue raised by the applicant under this heading is whether the payment of carer’s allowance can be classed as social assistance. In the Brey case it was held that the concept of a social assistance system had to be defined by reference to the objective pursued by the provision in question. The court held that the concept had to be interpreted as covering all assistance introduced by the public authorities that can be claimed by an individual who does not have resources sufficient to meet his own basic needs and the needs of his family and who, by reason of that fact, may become a burden on the public finances of the host Member State during his period of residence which could have consequences for the overall level of assistance which may be granted by that state (paras. 60 and 61).

113. While the applicant laid stress on the fact that carer’s allowance had not been included in Annex 10 to Regulation 883/2004, the CJEU has made it clear that the nature of the social welfare payment must be examined by reference to its purpose and the conditions on which it is granted, and not on its classification by national legislation. This approach was endorsed by the CJEU in Hughes v Chief Adjudication Officer, Belfast [1992] ECR 1-04839. The approach was also endorsed by the Court of Appeal in Munteanu v Minister for Social Protection [2020] 3 IR 366 at para. 40.

114. I accept the evidence given by Mr Lea in his affidavit, the content of which has already been summarised above. I accept that carer’s allowance is a form of income support that is designed to compensate carers for the level of care that they are providing to the recipients of the care and in respect of their inability due to such care provision for them to access the labour market to earn a wage.

115. I accept the submission made on behalf of the respondents that the classification of certain payments as being special non-contributory cash benefits within the meaning of Art. 70 of Regulation 883/2004 is not relevant to the issues in the proceedings, as that regulation relates to the coordination of social security systems within the European Union and, in particular, the circumstances in which certain payments may be exportable, rather than the entitlement of citizens to claim payments in a Member State where they do not have a lawful right to reside. I hold that the fact that a payment may not be a special noncontributory cash benefit for the purposes of Regulation 883/2004 does not determine that it does not form part of the social assistance system of the State.

116. I accept the submission made on behalf of the respondents that the obligation on the applicant not to be an unreasonable burden relates to the social assistance system in operation in the host Member State. In particular, the concept of the social assistance system must be interpreted as covering all assistance introduced by public authorities, whether at national, regional or local level, that can be claimed by an individual who does not have resources sufficient to meet his own basic needs and the needs of his family and, who by reason of that fact, may become a burden on the public finances of the host Member State.

117. I accept the evidence that carer’s allowance is funded by general taxation. It comes within Part 3 of the 2005 Act, which is directed at social assistance payments. It is the subject of a means test and it is not a payment which is intended to facilitate entry to the labour market.

118. I hold that carer’s allowance is designed to cater for a person’s basic needs by providing income support to people who are providing care of at least 35 hours per week to a person who meets the threshold of disability. It is a payment designed to compensate them for being unable to access the labour market due to their commitments providing care to another person. While there are reasonably generous levels of income that will be disregarded for the purpose of the means test, that does not prevent the payment being seen as being one designed to provide income support so as to cater for a person’s basic needs. I hold that carer’s allowance is social assistance.

119. The second issue under this limb is whether the applicant had sufficient resources. In her application she had stated that she did not have any income. She was the co-owner of a property in Romania worth approximately €20,000 and her husband had a small pension. Her resources had been assessed at zero by the inspector. That had not been challenged. I find that in these circumstances the conclusion reached that she did not have sufficient resources not to become a burden on the social assistance system in the State, cannot be regarded as being unreasonable or unsupported by the evidence.

120. Insofar as the applicant’s accommodation and subsistence requirements were being provided for by her daughter and son-in-law, that was being provided on a purely voluntary basis. The applicant had no legal entitlement to it. It could be withdrawn at any time. The provision of such facilities in these circumstances could not be regarded as being part of the applicant’s resources.

121. As carer’s allowance is part of the social assistance system in the State, it is subject to the unreasonable burden test. In examining that question, I find that the appeals officer considered all relevant matters. He took account of the personal circumstances of the applicant. It was reasonable and logical for him to have concluded that where the applicant had zero resources, she was likely to become an unreasonable burden on the social assistance system in the State. It is clear from the decisions in Brey and Griga that a decision-maker can have regard to the prospective likely duration of benefits which might be granted to an applicant. In this case the appeals officer was entitled to conclude that the applicant’s requirement for carer’s allowance was not likely to be of short or temporary duration. It was never envisaged that she would be paid by her daughter. Accordingly, she was likely to be a burden on the social assistance system in the State for the foreseeable future.

122. I find that the appeals officer applied the correct test. He looked at the personal circumstances of the applicant. He was entitled to come to the conclusion that in view of her level of resources, she was likely to be an unreasonable burden on the social assistance system in the State. Therefore, she did not satisfy the first criterion for a right of residence for economically inactive people.

123. The second limb of that test cannot be ignored. While it was not referred to in the decision, it is accepted that the applicant did not provide any evidence that she held comprehensive sickness insurance at the time of her application or at any time thereafter.

124. In argument at the bar, counsel on behalf of the applicant submitted that the

decision in VI v Commissioners for Her Majesty’s Revenue and Customs (Case C247/20) established that being registered with the NHS in the UK had been held to be sufficient compliance with this limb of the test for acquiring a right of residence. He submitted that because people in Ireland, citizens and noncitizens alike, could walk into the Accident & Emergency (‘A&E’) department of a hospital and obtain treatment there under the Irish public health system, that that sufficed as compliance with this limb of the test.

125. I do not accept that submission. Firstly, there is no evidence before me as to what is involved in registration under the NHS system in the UK; nor as to the benefits or rights that are conferred by such registration. The key point in the VI

decision was that the court held the fact remained that once a union citizen was affiliated to “such a public sickness insurance system” in the host member state, he or she had comprehensive sickness insurance within the meaning of Art. 7 (1)(b) of the Directive. That judgment is clearly referring to a public sickness insurance system. There is no evidence of the existence of any such public insurance system in this State.

126. There is no evidence before me as to the conditions, if any, on which a person can receive treatment under the public health system in Ireland. It is not enough simply to say that anyone can walk into an A&E department in a hospital in Ireland and get treatment for free under the public health system. That is merely an assertion. It is not evidence. It falls far short of evidence that such rights, if any, as the applicant may have to avail of treatment under the public health system in Ireland could be seen as constituting comprehensive sickness insurance for the purpose of reg. 6(3)(a)(ii) of the 2015 Regulations.

127. I find that in her application for carer’s allowance the applicant had not demonstrated that she had comprehensive sickness insurance. In such circumstances, the appeals officer could not have concluded that she had a right of residence under reg. 6(3)(a)(ii) of the 2015 Regulations.

128. Counsel for the applicant requested that I should refer a question to the CJEU under this heading. I decline to do so as I am satisfied that the issues raised under this heading are clear. The court does not require the assistance of the CJEU in respect of the interpretation of any provision of EU law on this aspect.

129. The applicant also submitted that she had a right of residence in the State which arose from the fact that her daughter was a worker who had exercised her right to free movement within the EU by coming to Ireland to work since 2013.

130. The applicant accepted that under EU law a worker in the position of her daughter had the right to have some family members join her in the host state. One of these categories is a dependent family member in the ascending line. The applicant accepted that she was not within that category as she had never been dependent on her daughter for support when she was living in her country of origin, Romania.

131. The applicant sought to argue that her position was analogous to that in GV v Chief Appeals Officer (Case 488/ 21). In that case, the applicant had been dependent on her daughter from before time that she came to join her daughter in Ireland. Her daughter had come to Ireland in order to take up work. She subsequently became a naturalized Irish citizen. The essential issue in the case was whether, in the event that the applicant was awarded disability allowance on account of her suffering from arthritis, she would no longer be dependent upon her daughter for support, which in turn would mean she lost her right of residence in this State under the category for dependent family members in the ascending line.

132. The question which was referred by the Irish Court of Appeal was as follows: “Is the derived right of residence of a direct relative in the ascending line of a Union citizen worker pursuant to Article 7 [1] [d] of Directive 2004/38 conditional on the continued dependency of that relative on the worker?”

133. In answering that question, the CJEU held that the status of “dependent” relative in the ascending line within the meaning of the Directive could not be affected by the grant of social assistance benefit in the host member state. The court held that to hold otherwise, would amount to accepting that the grant of such a benefit could result in the person concerned forfeiting the status of dependent family member and consequently, justify the withdrawal of that benefit or even the loss of his or her right of residence. The court held that such a solution would, in practice, preclude that dependent family member from claiming that social welfare benefit and would, for that reason, undermine the equal treatment accorded to the migrant worker.

134. The court went on to hold that the relevant provisions of EU law contributed to the attainment of the objective pursued by Regulation 492/ 2011, namely freedom of movement for workers, since it ensured the creation of the best possible conditions for the integration of the family members of union citizens who had made use of that freedom and had worked in the host Member State. The court went on to emphasize that the taxes which a migrant worker had paid in the host Member State in the course of his or her employment, had contributed to the financing of the social policies of that Member State and should, consequently, profit from them under the same conditions as national workers. The court held that the objective consisting in avoiding an unreasonable financial burden on the host Member State could not justify the unequal treatment of migrant workers as compared with national workers. 135. The court gave its answer to the question that had been referred to it in the following terms at para 72 of the judgment: “In the light of all the foregoing considerations, the answer to the questions asked is that Article 45 TFEU, as implemented by Article 7(2) of Regulation No 492/2011, read in combination with Article 2(2)(d), Article 7(1)(a) and (d) and Article 14(2) of Directive 2004/38, must be interpreted as precluding legislation of a Member State which permits the authorities of that Member State to refuse to grant a social assistance benefit to a direct relative in the ascending line who, at the time the application for that benefit is made, is dependent on a worker who is a Union citizen, or even to withdraw from him or her the right of residence for more than three months, on the ground that the grant of the said benefit would have the effect that that family member would no longer be dependent on the worker who is a Union citizen and would thus become an unreasonable burden on the social assistance system of the said Member State.”

136. Counsel for the applicant submitted in this case that if this court were to refer a question to the CJEU there was a strong argument that the applicant could benefit from the reasoning in the GV case to establish a right of residence in the State, so as to safeguard the right to equal treatment for the applicant’s daughter.

137. I do not regard that submission as being well founded. There is nothing in the GV case or in the Directive which provides that merely being a family member of a worker who has exercised his/ her right to move freely within the EU, can be used as a means of acquiring a right of residence in the host Member State for the family member.

138. The GV case does not support that proposition. The decision was predicated on the fact the applicant in that case had a right of residence in this State, as she was a dependent family member in the ascending line, who had been dependent on her daughter from before the time that she entered the State. There was no issue about her having a right of residence in the State. That decision merely looked at the question of whether, subsequent receipt of the social welfare payment would mean that she ceased to be dependent on her daughter, but instead became an unreasonable burden on the social assistance system in the State; thereby losing her right to reside in the State, which was a precondition to receipt of the social welfare benefit in question, being disability allowance.

139. The decision in GV does not support the applicant’s case that she is entitled to acquire a right of residence in the State otherwise than by reliance on the provisions of the Directive, as implemented in Irish law by reg. 6 of the 2015 Regulations. Accordingly, I hold that this submission based on the decision in the GV case is not well founded.

140. Finally, it was submitted that the decision of the appeals officer on the review should be struck down for failure to give reasons. The law in relation to the duty on a

decision-maker to give reasons for his decision is well settled: see Mallak v Minister for Justice, Equality and Law Reform [2012] IESC 59; Connolly v An Bord Pleanála [2021] 2 IR 752; Balz v An Bord Pleanála [2023] 3 IR751; NECI v Labour Court [2022]

3 IR 515.

141. The case law establishes that the duty to give reasons comprises a duty to state in general terms what decision has been reached by the decision-maker and why he/she reached that decision. It is necessary for him/her to give sufficient reasons to enable the person to whom the decision is addressed to consider the decision and to take legal advice on it, so that they can be advised whether they have grounds to appeal the

decision or to challenge it by way of judicial review proceedings.

142. There are many dicta in the case law to the effect that there is no obligation on a statutory decision maker to deliver a decision that is akin to a judgment of one of the Superior Courts. Nor is there an obligation on them to engage with each and every submission made on behalf of the parties. The duty is to give the main reasons for their

decision on the main points at issue.

143. I am satisfied that the decision issued by the appeals officer on review on 2 April 2024 is a comprehensive and well-reasoned decision. It runs to 12 pages in length. It sets out the applicable legal provisions with clarity. It reaches conclusions that are reasonable and logical. The conclusions reached were open to the decision maker upon the evidence that was before him.

144. I am satisfied that the reasons given by the appeals officer are clear. They are more than sufficient to enable the applicant to know why he reached the decisions that he did and, in particular, why he came to the conclusion that she did not have a right of residence in the State as either a worker or as an economically inactive person; and on that basis, why she could not be regarded as being habitually resident in the State at the time that she applied for carer’s allowance.

145. I find that the reasons given by the appeals officer were sufficient to have enabled the applicant to be advised as to the merits of pursuing a further appeal within the statutory system, or on a point of law to the High Court, or whether she should challenge the decision by way of judicial review proceedings. I find that the decision, when read as a whole and in conjunction with the file and the preceding decisions given on her application, provides adequate reasons for the conclusions reached in the

decision.

146. It was submitted on behalf of the applicant that the appeals officer neither gave a decision on her request for a reference to the CJEU, nor made any finding that he did not have jurisdiction to make such a reference, and that his decision was defective as a result of these omissions.

147. While it is correct that a request for a reference had been made, which request was not addressed at all in the decision, that does not affect the validity of the decision. A decision-maker is not obliged to make a reference to the CJEU. That the decisionmaker clearly did not make such a reference, is not a ground on which the decision can be struck down.

148. Insofar as the applicant requested that this Court should make a reference as to whether the appeals officer within the department of the first respondent is a court or tribunal having jurisdiction to make a reference to the CJEU, I refuse to refer this question on the basis that resolution of that issue is not necessary to enable me to give judgment on the issues that arise in these proceedings.

149. For the reasons set out in this judgment, I refuse to grant the reliefs sought by the applicant in her notice of motion dated 16 October 2024 and in her statement of grounds.

150. Before coming to the terms of the proposed final order, I wish to make it clear that in reaching the conclusions that I have reached in this judgment, I have applied the law, which in turn has brought me to these conclusions.

151. I accept the submission made by counsel on behalf of the respondents that in assessing the eligibility of a person for social welfare benefits, the first respondent has to apply the rules that are set out in the legislation.

152. I accept that he is not at large to waive any of the eligibility requirements for a particular payment. He cannot award a social welfare payment in a deserving case that would not otherwise be eligible for the payment. To do so would lead to chaos and would be open to serious abuse. All he and his officials can do is to apply the statutory criteria in a fair and reasonable manner. I accept that the first respondent’s officials have done that in this case.

153. Having said that, one is left with the situation as it is in the real world. The applicant’s daughter and son-in-law are frontline health workers. They served the State and the people of Ireland with courage and at a great personal sacrifice during the Covid-19 pandemic. They find themselves in an almost intolerable position where they have to work every available hour so as to obtain funds to provide privately funded therapy for their two sons who have extensive special needs.

154. The applicant and her husband came to Ireland to help them. If the applicant had been an Irish citizen, who had travelled from Waterford or Galway to Dublin to care for her grandchildren for 35 hours per week and in return for which she was given board and lodging by her daughter, there is little doubt in my mind but that she would have been entitled to receive carer’s allowance.

155. While the conclusions in this judgment might be legally correct; it is hardly just that a grandmother, who is an EU citizen, who travelled from Romania to Dublin to do the same thing, should be denied this payment because she was unlucky enough to fall foul of the provisions of EU law and Irish law relating to the acquisition of a right of residence in the State as a worker or as an economically inactive EU citizen.

Proposed Final Order.

156. Having regard to the findings of the court in this judgment, it is proposed that the final order should provide the following: (a) refuse the reliefs sought by the applicant in her notice of motion dated 16 October 2024 and in her statement of grounds; (b) continue the order made by Gearty J. at the leave stage prohibiting publication of anything that would tend to identify the children in these proceedings.

157. It is proposed that an identical order should be made in the proceedings bearing the same title as in these proceedings and bearing record number 2024/857 JR.

158. As this judgment has been delivered electronically the parties shall have until 3 October 2025 to furnish brief written submissions on the terms of the final order and on costs and on any other matters that may arise.

159. The matter will be put in for mention at 10.30 hours on 15 October 2025 for the purpose of making final orders.