Unpublished Paper
A2 workers and the right to reside in Ireland – Genov and Gusa v Minister for Social Protection
Social Protection
(2013)
Abstract
This case involves a judicial review case in the Irish High Court of a refusal of jobseeker's allowance to two formerly self-employed persons (one Romanian, one Bulgarian) on the basis that they did not have a right to reside in Ireland (as required by the relevant provisions of the Social Welfare Acts). The case raises some similar issues to those raised in the recent Solovastru ruling, in particular, whether or not formerly self-employed workers retain a right to reside under EU law once their self-employment ceases. It was also argued that if the two workers did not have a right to reside, to deny them access to social assistance would be incompatible with EU law, an argument rejected by the High Court. Unfortunately, the most obvious similarity between this case and Solovastru is the very limited understanding of social welfare and EU law issues displayed by the respective judges.
UPDATE: In July 2016, the Court of Appeal referred a number of questions to the CJEU in relation to the Gusa case (Gusa -v- Minister for Social Protection [2016] IECA 237). First, it asked if Mr. Gusa did retain a right to reside as a formerly self-employed person sunder EU law (in effect whether Tilianu and Solevsatru are correctly decided) and, second, if he did not, was the right to reside test compatible with EU law. The latter question may be somewhat unnecessary as the answer now appears to be clear in the light of Dano and Alimanovic. The questions are:
1. Does an EU citizen who (1) is a national of another Member State; (2) has lawfully resided in and worked as a self employed person in a host Member State for approximately four years; (3) has ceased his work or economic activity by reason of absence of work and (4) has registered as a jobseeker with the relevant employment office retain the status of self employed person pursuant to Article 7(1)(a) whether pursuant to Article 7(3)(b) of Directive 2004/38/EC or otherwise .
2. If not, does he retain the right to reside in the host Member State not having satisfied the criteria in Article 7(1) (b) or (c) of Directive 2004/38/EC or is he only protected from expulsion pursuant to Article 14(4) (b) of Directive 2004/38/EC.
3. If not, in relation to such a person is a refusal of a jobseekers allowance (which is a non-contributory special benefit within the meaning the meaning Article 70 of Regulation 883/2004) by reason of a failure to establish a right to reside in the host Member State compatible with EU law, and in particular Article 4 of Regulation 883/2004.
Keywords
- Jobseeker's allowance,
- right to reside,
- self-employment,
- whether right to reside compatible with EU law
Disciplines
Publication Date
July, 2013
Comments
Updated July 2016
Citation Information
Mel Cousins. "A2 workers and the right to reside in Ireland – Genov and Gusa v Minister for Social Protection" Social Protection (2013) Available at: http://works.bepress.com/mel_cousins/72/