Neagoe v Minister for Social Protection: Informal Intrafamily Caregiving and Board-and-Lodging Do Not Confer EU “Worker” Status; Carer’s Allowance is “Social Assistance” Requiring Article 7(1)(b) Compliance

Introduction

This High Court decision addresses a recurring and sensitive interface between EU free movement rights, domestic social welfare eligibility, and family care realities. A Romanian national, Ms. Anastasia Neagoe, moved to Ireland in September 2021 to provide 35 hours per week of care to her two grandchildren with serious special needs. In January/February 2022 she applied for Carer’s Allowance under the Social Welfare Consolidation Act 2005 (as amended). The Department refused the claim on the basis that she was not habitually resident because she had no right to reside in Ireland on the application date. Appeals (including a review) were unsuccessful, leading to judicial review.

The primary question was whether Ms. Neagoe had a right of residence under Article 7 of Directive 2004/38/EC (the “Citizenship Directive”), either as a “worker” under Article 7(1)(a), or as an economically inactive person satisfying Article 7(1)(b) (sufficient resources and comprehensive sickness insurance). She also argued that Ireland had incorrectly transposed the Directive through the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548/2015), and raised additional points about social assistance classification, reasoning, mootness, exhaustion of remedies, and references to the CJEU.

Mr Justice Barr refused the reliefs sought and upheld the Appeals Officer’s decision, providing detailed guidance on the scope of “worker” status in an intrafamily caregiving context, the classification of Carer’s Allowance as social assistance, and the strict application of Article 7(1)(b)’s preconditions.

Summary of the Judgment

Worker status: Providing 35 hours per week of intrafamily care in exchange for board, lodging and expenses did not make the applicant a “worker” under EU law; there was no employment relationship and no engagement in an economic activity for the purposes of free movement law. The CJEU cases (Levin, Steymann, Bettray, Trojani) and the Court of Appeal’s guidance in Razneas applied.
Transposition: Regulation 6(3)(a)(i) of the 2015 Regulations (“in employment or self-employment”) validly captures the EU-law concept of “worker”; there was no improper transposition of Article 7(1)(a) of the Directive.
Economically inactive route: Carer’s Allowance is part of the State’s “social assistance system.” The applicant failed Article 7(1)(b) because she had insufficient resources (resources assessed at zero; support from relatives was voluntary and not “resources”) and she did not demonstrate comprehensive sickness insurance.
Habitual residence: Section 246(5) of the 2005 Act precludes habitual residence where there is no right to reside. Accordingly, the habitual residence requirement for Carer’s Allowance was not satisfied.
Family member route (GV): The judgment distinguishes Case C‑488/21 (GV) and holds that the applicant, not being a pre-entry dependent relative in the ascending line, could not derive a right of residence via her daughter’s EU worker status.
Procedural issues: Judicial review was not barred by failure to exhaust remedies given the transposition challenge; the case was not moot given potential arrears; the Appeals Officer’s reasons were adequate; and no CJEU references were necessary.

Key Issues and Findings

Informal intrafamily caregiving, even at significant intensity (35 hours/week), in exchange for board and lodging, does not confer “worker” status absent an employment relationship and engagement in an economic activity.
Irish transposition: “In employment or self-employment” in Reg. 6(3)(a)(i) does not unlawfully narrow “worker”; it aligns with CJEU’s objective-criteria definition.
Carer’s Allowance is “social assistance” within the meaning of Article 7(1)(b) and Brey; the “unreasonable burden” assessment can be prospective and system-wide.
Voluntary support from family does not count as the applicant’s “resources.”
Comprehensive sickness insurance must be proven; mere access to public hospital A&E is not evidence of such insurance.
No derived residence right via a family member’s worker status unless pre-entry dependency exists (GV distinguished).

Precedents Cited and Their Influence

EU Free Movement “Worker” Jurisprudence

Levin v Staatssecretaris van Justitie [1982] ECR 1035: Free movement protections cover “effective and genuine” work, excluding “marginal and ancillary” activity; aimed at persons pursuing an economic activity.
Steymann (Case C‑196/87): Members contributing to a community’s commercial activities and receiving board, lodging and pocket money could be “workers” where the services are an indirect quid pro quo for genuine and effective work. The court relied on the commercial nature of the activities and the economic reality of the exchange.
Bettray (Case C‑344/87): Participation in a work scheme mainly for rehabilitation did not create “worker” status; the touchstone is pursuit of an economic activity, not a therapeutic objective.
Trojani (Case C‑456/02): Reaffirmed “worker” as a person performing services for and under the direction of another for remuneration; if activities are primarily rehabilitative, they are not genuine economic activity; remuneration can be in kind but must anchor an employment relationship.
Razneas v Chief Appeals Officer [2022] IECA 227: The Court of Appeal synthesised CJEU principles; voluntary, unpaid trial activities with minimal in-kind provision did not constitute “remuneration” or an employment relationship. The High Court here expressly relied on Razneas’ five-part summary.

Applying this line of authority, the Court held that Ms. Neagoe’s care was voluntary intrafamily assistance, not undertaken within an economic activity or under an employment relationship. Board and lodging in this context did not establish the kind of remunerated, subordinate employment recognised in Trojani/Steymann.

Article 7(1)(b), Social Assistance, and Sufficient Resources

Brey (Case C‑140/12): “Social assistance” covers publicly funded assistance that individuals without sufficient resources can claim, potentially burdening the host State’s finances; the assessment is contextual, proportional, and may look prospectively at likely burden.
Griga v Chief Appeals Officer [2017] IEHC 602: Host State may consider future reliance and likely duration of benefits when assessing “unreasonable burden.”
Munteanu v Minister for Social Protection [2019] IECA 236: If a payment is not designed to facilitate labour market access, it tends to be “social assistance.” The Court analogised this reasoning to Carer’s Allowance.
Hughes v Chief Adjudication Officer, Belfast [1992] ECR I‑4839: Classification depends on purpose and conditions, not domestic labels or lists.

On this basis, the Court found Carer’s Allowance to be social assistance: funded from taxation, means-tested to address income need when caring duties restrict labour market participation, and not designed to facilitate labour market access.

Comprehensive Sickness Insurance

VI v HMRC (Case C‑247/20): Affiliation to a “public sickness insurance system” can satisfy Article 7(1)(b). The High Court distinguished VI because Ireland had no evidence before the Court of an equivalent public sickness insurance affiliation by the applicant; asserting access to A&E is not proof of comprehensive sickness insurance.

Derived Residence Rights via Family Members

GV v Chief Appeals Officer (Case C‑488/21): A direct relative in the ascending line, already dependent at the time of entry, does not lose that status merely by obtaining social assistance; the case protects equal treatment of the worker’s family but presupposes a pre-existing derived right. The High Court held GV did not extend to creating a new derived right absent pre-entry dependency.

Procedural Guidance

Petecel v Minister for Social Protection [2020] IESC 25: Recognises the practicality of bringing judicial review where a direct transposition challenge is raised; parallel proceedings need not be required.
Mallak; Connolly; Balz; NECI: Reasons must address the main issues to permit understanding and potential challenge; the Appeals Officer’s 12-page decision satisfied this standard.

Legal Reasoning

1) Worker status under Article 7(1)(a) and Reg. 6(3)(a)(i)

The Court reaffirmed that “worker” is an EU-autonomous concept defined by objective criteria: performance of services for and under the direction of another for remuneration, and the activity must be “effective and genuine,” not “marginal and ancillary.” While remuneration may be in kind, the analysis is not purely transactional; the work must be embedded in an employment relationship and in an economic activity, rather than a voluntary, intrafamily support arrangement.

Key to the Court’s conclusion were the facts: the caregiving was voluntary; no contract or employment relationship existed; and the caregiving was not part of any economic activity carried on by the daughter or otherwise. Steymann was distinguishable because the work was tied to commercial operations; Razneas and Trojani supplied the controlling tests. Thus, Ms. Neagoe was not a “worker,” and without a right to reside her claim failed the habitual residence gateway in section 246(5) of the 2005 Act.

2) Transposition challenge

Although the Directive speaks of “workers or self-employed persons,” the 2015 Regulations refer to those “in employment or in self-employment.” The Court held that, in substance, this language captures the EU concept of “worker” as interpreted by the CJEU; there is no impermissible narrowing and therefore no failure to transpose.

3) Economically inactive residence under Article 7(1)(b) and Reg. 6(3)(a)(ii)

To succeed under this pathway, an applicant must demonstrate both sufficient resources not to become an “unreasonable burden” on the social assistance system of the State and comprehensive sickness insurance.

Social assistance classification: The Court held Carer’s Allowance is social assistance. It is tax-funded, means-tested and provides income support because caring duties reduce capacity to earn. It is not primarily designed to facilitate labour market entry. Whether it appears in Annex X of Regulation 883/2004 is not determinative; the correct approach is by reference to purpose and conditions (Hughes; Brey; Munteanu).
Sufficient resources: The applicant’s resources were assessed at zero; co-ownership of low-value property and the husband’s small pension did not alter the analysis. Voluntary accommodation and subsistence from family members are not the applicant’s resources; they can be withdrawn at any time. Applying Brey and Griga, the Appeals Officer could reasonably conclude a likely long-term, prospective burden on the social assistance system.
Comprehensive sickness insurance: The applicant did not establish this. The Court rejected the analogy to UK NHS registration in VI due to absence of evidence of any Irish public sickness insurance affiliation and because mere access to emergency care is not “comprehensive sickness insurance.”

Failing one limb suffices to defeat Article 7(1)(b); the applicant failed both.

4) Derived rights via an EU-worker family member

Absent pre-existing dependency on the daughter before entry, the applicant could not rely on a derived residence right. GV protects retaining dependent status despite social assistance receipt; it does not create dependency or a new derived right where none existed.

5) Procedural rulings

Exhaustion: Judicial review was appropriate because a transposition challenge could not be determined in the statutory appeal; pursuing parallel tracks would be unduly burdensome (Petecel).
Mootness: Not moot owing to potential arrears if ultimately successful on remittal for the period in issue.
Reasons: The Appeals Officer’s written decision met the standard; it addressed the main issues and allowed informed challenge.
CJEU references: Refused; the law was clear and the questions would have asked the CJEU to apply established tests to case-specific facts.

Impact and Practical Implications

Intrafamily carers and free movement: EU citizens who move to Ireland to provide informal care to relatives, even on a full-time basis for board and lodging, will not ordinarily qualify as “workers” for residence purposes without a genuine employment relationship embedded in an economic activity.
Designing lawful pathways: If a family wishes to regularise care as employment, mere labels will not suffice. There must be genuine remuneration (typically wages), subordination/direction, and economic activity consistent with EU worker jurisprudence. Evidence such as written contracts, tax/PRSI registration, and market-rate remuneration can be relevant—but family context alone does not preclude “worker” status if the objective criteria are met. However, where the service is domestic and private, proving “economic activity” may remain challenging.
Article 7(1)(b) compliance: Economically inactive EU citizens must plan for sufficient resources and comprehensive sickness insurance. Voluntary support from relatives is precarious and not counted as the applicant’s resources. Evidence of genuine health insurance (public insurance affiliation where available, or private cover) is crucial.
Carer’s Allowance policy: The classification of Carer’s Allowance as social assistance means EU citizens without a pre-existing right to reside cannot bootstrap a right of residence by applying for the Allowance. Decision-makers may assess the prospective system-wide burden; long-term care scenarios weigh against sufficiency of resources.
Derived rights (GV boundaries): Only pre-entry dependent relatives in the ascending line can derive residence from an EU worker’s status. Subsequent reliance on social assistance does not terminate that derived right, but the threshold dependency must already exist.
Administrative practice: The judgment endorses current Social Protection decision-making frameworks on habitual residence and right-to-reside gateways, the “unreasonable burden” test, and reasoning standards.
Policy debate: The Court recognised the human predicament—especially for health-worker families with high special-needs costs—but emphasised the constraints of EU and domestic law. Any change for intrafamily carers who are mobile EU citizens would require legislative or EU-level policy responses, not case-by-case administrative discretion.

Complex Concepts Simplified

Worker (EU law): A person who, for a period of time, performs services for and under the direction of another person in return for remuneration. The work must be genuine and effective. Remuneration can be in kind, but there must be an employment relationship and the activity must be economic, not therapeutic or purely voluntary.
Habitual residence and right-to-reside gateway: In Ireland, you cannot be “habitually resident” for social assistance purposes if you do not first have a right to reside. Right to reside is often the decisive threshold.
Social assistance system: Publicly financed support claimable by persons without sufficient means to meet basic needs. Classification depends on purpose and conditions, not on a domestic label. Carer’s Allowance is social assistance.
Unreasonable burden test: For economically inactive EU citizens, authorities assess whether granting benefits would impose an unreasonable burden on the host State’s social assistance system, taking into account the individual’s circumstances and the likely future duration/cost.
Sufficient resources: The applicant must have enough means of their own. Voluntary accommodation and subsistence provided by relatives are not counted as the applicant’s resources because they are not guaranteed and can be withdrawn.
Comprehensive sickness insurance: Applicants must show insurance covering medical risks in the host State. Access to emergency treatment is not, without more, comprehensive sickness insurance.
Derived family residence right (ascending line): A parent may derive a right of residence from an EU-worker child only if the parent was already dependent before entering the host State. Getting social assistance later does not terminate that dependency; but it cannot create dependency where none existed.

What This Means for Future Cases

Worker claims based on family care will face a high bar unless the arrangement bears the hallmarks of a genuine employment relationship in an economic activity.
Economically inactive applicants should prepare robust evidence of:
- Independent resources sufficient to avoid becoming an unreasonable burden, and
- Comprehensive sickness insurance in Ireland.
Challengers may bring judicial review when transposition issues arise; courts will not deem cases moot if arrears remain a possibility.
Appeals Officers’ decisions that clearly address the main issues and provide cogent reasons will be upheld.

Conclusion

Neagoe affirms four important propositions in Irish and EU free movement law:

Informal intrafamily caregiving—even intensive care for vulnerable relatives—does not by itself create EU “worker” status where there is no employment relationship within an economic activity.
Regulation 6 of the 2015 Regulations correctly transposes Article 7(1)(a): “in employment” faithfully reflects the CJEU’s autonomous definition of “worker.”
Carer’s Allowance is social assistance; economically inactive EU citizens must meet the Article 7(1)(b) double test of sufficient resources and comprehensive sickness insurance. Voluntary family support is not “resources,” and access to A&E is not evidence of comprehensive insurance.
A derived right of residence via an EU-worker family member requires pre-entry dependency; GV cannot be used to create that dependency.

While the Court acknowledged the compelling equities of the facts, it underscored that the statutory and EU-law frameworks are determinative. The judgment will guide social welfare decision-makers and practitioners navigating the complex thresholds of right to reside, habitual residence, and EU free movement, and highlights an area where any reform to accommodate cross-border family carers lies in the hands of legislators rather than the courts.