Voican vs Chief Appeals Officer: An Update on Questions to Be Referred to Court of Justice of the European Union

Stephen Kirwan from our Immigration and International Law Team provides a brief updated on Voican vs Chief Appeals Officer a case taken by KOD Lyons Solicitors

The Court of Appeal have ordered a reference to the Court of Justice of the European Union pursuant to Article 267 of the TFEU in the matter of Voican vs Chief Appeals Officer, a KOD Lyons case.  The main issued in the case is whether Ms Georgeta Voican the mother of an EU citizen worker is entitled to receive a form of social assistance, in this case disability allowance, notwithstanding that she has not been economically active in Ireland and has been resident in the jurisdiction for less than five years and was thus not deemed to be a permanent resident for the purposes of EU Directive 2004/38 commonly known as the ‘Citizenship Directive’.

Ms Voican was successful in this matter before Mr Justice Garret Simons in the High Court wherein the court held that the decision of the Chief Appeals Officer to refuse Ms Voican a disability allowance payment was contrary to Article 24 of the Citizenship Directive in that it breached the principle of equal treatment contained therein. The original judgment in the High Court clarified the law for thousands of dependents of non-Irish EU nationals who were effectively exercising EU Treaty Rights in the jurisdiction and was a welcome development for thousands of people.

The matter was subsequently appealed by the Chief Appeals Office to the Court of Appeal who have decided to refer the following questions:

1. Is the derived right of residence of a direct relative in the ascending line of a Union citizen worker pursuant to Article 7(2) of Directive 2004/38/EC conditional on the continued dependency of that relative on the worker?
2. Does Directive 2004/83/EC preclude a host Member State from limiting access to a social assistance payment benefit by a family member of a Union citizen worker who enjoys a derived right of residence on the basis of her dependency on that worker, where access to such payment would mean she is no longer dependent on the worker?
3. Does Directive 2004/83/EC preclude a host Member State from limiting access to a social assistance benefit by a family member of a Union citizen worker who enjoys a derived right of residence on the basis of her dependency on that worker, on the grounds that payment of the benefit will result in the family member concerned becoming an unreasonable burden on the social assistance system of the State?

The team at KOD Lyons are very hopeful of a successful outcome and are anxious as always to assist those affected by the current discrimination by the Chief Appeals Officer’s policy.

Do not hesitate to contact Stephen Kirwan of this office at stephen.kirwan@kodlyons.ie should you need any assistance in light of the issues raised.