Skip to main content
Unpublished Paper
Establishing and Retaining a Right of Residence as a Worker under EU law - Tarola -v- Minister for Social Protection
social (2016)
  • Mel Cousins
Abstract
This case involves the right to reside test (which forms part of the habitual residence condition (HRC)) under Irish social welfare law. The High Court ruled that, as the applicant had not worked for more than a year, he had not established a right of residence in Ireland under Directive 2004/38/EU and thus was not entitled to jobseeker’s allowance. Unfortunately, the judgement provides very little background as to the relevant law or facts at issue. It also misreads the relevant law to such an extent that it must be considered to have been decided per incuriam.  Interestingly, the case also raises a broader issue as to whether the approach adopted by the Department of Social Protection in such cases is correct. Under EU law, Union citizens who have entered Ireland in order to seek employment have a right to reside for as long as they can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged. Such persons would be entitled to benefits of a financial nature which facilitate access to the labour market which would appear to include jobseeker’s allowance.  Therefore, in such cases, an unemployed person who is continuing to seek employment and has a genuine chance of being engaged arguably has a right to reside even if he has not worked in Ireland and/or for more than six months after short-term work has ceased.

UPDATE: Note that the Court of Appeal (per Hogan J.) has now referred the following question to the CJEU ([2017] IECA 208):
 
“Where a citizen of another EU member state arrives in the host state and works for a two week period for which he is genuinely remunerated and thereafter becomes involuntarily unemployed, does that citizen thereby retain the status of a worker for no less than a further six months for the purposes of Article 7(3)(c) and Article 7(1)(a) of Directive 2004/38/EC such as would entitle him to receive social security benefits on the same basis as if he were a resident citizen of the host State?
 
The CA also helpfully sets out some of the background facts of the case which help to clarify the issues involved.
Keywords
  • Jobsedeler's allowance,
  • habitual residence,
  • right to reside,
  • EU law,
  • social assistance
Publication Date
2016
Citation Information
Mel Cousins. "Establishing and Retaining a Right of Residence as a Worker under EU law - Tarola -v- Minister for Social Protection" social (2016)
Available at: http://works.bepress.com/mel_cousins/98/