A Romanian mother of two has lost her High Court action alleging the Department of Social Protection’s grounds for refusing to pay her various welfare benefits, including child benefit, breach EU law.

The woman came here in 2008 and said she survived by selling the Big Issue, begging and on charity food vouchers and, apart from some exceptional needs payments, got no benefits.

A member of the Roma community, she said her family fled their home, “such as it was”, in Waterford in 2014 when “angry gangs” protested outside.

When she applied in 2014 for benefits, she was refused because, at that time, she had no right to reside in the State as required by the Social Welfare Consolidation Act 2005 and was therefore ineligible.

She argued the right to reside test was incompatible with EU law and contended the properly applicable test depends on the nature and objective of the payments — Supplementary Welfare Allowance, Jobseekers Allowance and child benefit.

The Department argued several decisions of the Irish and European courts supported its application of the right to reside test.

When the case was before the High Court in 2015, the woman had secured a right to reside because her partner had recently got work but she argued she was entitled to be considered for retrospective payments in line with appropriate tests for each benefit.

In her reserved judgment on Friday, Ms Justice Iseult O’Malley (appointed to the Supreme Court since hearing the case), refused the reliefs.

The judge had adjourned the case pending a judgment of the Court of Justice of the EU (CJEU) concerning the UK’s application of the right to reside test. The CJEU decided the measures adopted by the UK conformed with EU law.

Right to reside test

While the woman argued the issue is the legality of the right to reside test, and that was “correct as far as it goes”, she must make out the factual case for herself in her various claims for benefits and interviews with the social welfare inspector, the judge said.

The State correctly described the woman as an “economically inactive” person who has not shown a real link to the Irish labour market. That was not a “derogatory description” and it may well be the woman is right in saying she is handicapped by her lack of English, the judge said.

Having found Jobseekers’ Allowance is a benefit governed by regulations on co-ordination of social security schemes of EU member states, the judge said the conditions of eligibility for that allowance are “solely a matter for national legislation” and a statutory requirement of lawful residence in the State is not precluded by EU law.

Because child benefit is a social security benefit, the judge said that meant conditions for eligibility are a matter for the national legislature. There was also no evidence the assessment of the woman’s application did not comply with the Directive.

Supplementary Welfare allowance, a form of social assistance, is covered by the Directive concerned with right of residence consequent on right of free movement within the EU and nothing in that Directive precluded setting lawful residence as a condition for social assistance payment, she said. An objective of the Directive was persons exercising free movement rights should not become “an unreasonable burden” on the social assistance system of the host state.

While accepting some consideration of a claimant’s personal circumstances is “clearly necessary”, the State was not required in every case to grant one or more payments of a benefit before determining an application, she held.

The woman’s history was taken into account when her social assistance application was considered and the Department’s conclusion her difficulties could not be considered temporary (which social assistance is intended to address) could not be considered irrational. The degree of individual assessment in her case was adequate, the judge held.