Factual and Procedural Background
This summary is based exclusively on the judgment delivered by Judge Barr and is anonymised in accordance with the instructions given.
The Applicant is a national of another Member State ("The Home State"). On 1 September 2021 the Applicant and her husband travelled to The State to reside with their daughter and son-in-law in order to provide full-time care for two grandchildren (then aged approximately 10 and 7) who have serious special needs (autism). The Applicant left employment in The Home State before moving. The Applicant's husband received a modest pension from The Home State (about €119 per week, as recorded in the affidavits).
The Applicant provided, and it was accepted by the Respondents, that she performed 35 hours of care per week for the grandchildren during the period 1 September 2021 to 27 May 2024. On 28 January 2022 the Applicant made an application for carer's allowance; the application was received by the first Respondent on 2 February 2022. The first Respondent refused payment on 3 May 2022 on the ground that the Applicant was not habitually resident because she did not have a right to reside in The State. The Applicant's appeal was refused on 10 February 2023 and a subsequent internal review (the review decision now challenged) was affirmed on 2 April 2024. The Applicant left The State on 27 May 2024 and obtained leave to apply for judicial review on 14 October 2024. The judgment under summary was delivered electronically on 22 August 2025.
Carer's allowance is a means-tested social welfare payment under the Social Welfare Consolidation Act 2005 (the "2005 Act"). Relevant eligibility features (as described in the judgment) are: at least 35 hours of care per week; the cared-for person meeting a statutory disability threshold; the carer passing a means test; and the carer being habitually resident in The State at the date of application and thereafter. Section 246(5) of the 2005 Act provides that, subject to limited exceptions, a person who does not have a right to reside in The State shall not be regarded as habitually resident for the purposes of the Act.
Legal Issues Presented
- Whether the Applicant had a right to reside in The State at the date of her application for carer's allowance (2 February 2022) because she was a "worker" within the meaning of EU law (Directive 2004/38/EC) by providing 35 hours' care per week in return for board, lodging and necessary expenses.
- Whether Directive 2004/38/EC was properly transposed into Irish law by the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548/2015) (in particular regulation 6(3)(a)(i)), or whether the regulation had impermissibly narrowed the Directive's scope.
- If the Applicant was not a "worker," whether she could qualify for a right of residence as an economically inactive person under regulation 6(3)(a)(ii) by showing (a) sufficient resources not to become an unreasonable burden on The State's social assistance system and (b) comprehensive sickness insurance.
- Whether carer's allowance is a form of "social assistance" for the purpose of the Directive's "unreasonable burden" test.
- Procedural and preliminary issues: whether the Applicant had to exhaust internal remedies before judicial review; whether the proceedings were moot; and whether the appeals officer's decision gave adequate reasons or should have referred points to the Court of Justice of the EU (CJEU).
Arguments of the Parties
Applicant's Arguments
- The Applicant argued she was a "worker" under EU law because she provided 35 hours' care per week in The State in return for board, lodging and necessary expenses; that in-kind provision could constitute remuneration and thus give rise to a right of residence under Art. 7(1)(a) of the Directive.
- The Applicant argued that the 2015 Regulations (reg. 6(3)(a)(i)) had impermissibly narrowed the definition of "worker" by referring to persons "in employment or in self-employment" rather than the wider EU-law concept, thereby amounting to a failure properly to transpose the Directive.
- Alternatively, the Applicant argued that she qualified as an economically inactive person with sufficient resources under reg. 6(3)(a)(ii). She contended that carer's allowance was not properly to be regarded as "social assistance" because it was income support to recognise caring activity rather than a payment to meet basic subsistence needs; she relied on distinctions in EU case law and on the absence of carer's allowance from Annex 10 to Regulation 883/2004.
- The Applicant submitted that the appeals officer misapplied the "unreasonable burden" test by failing to consider the Applicant's accommodation and subsistence being provided by family members, and by not conducting a two-stage assessment considering whether any burden would be unreasonable in the context of the entire social assistance system.
- On procedure, the Applicant submitted it was reasonable to proceed by way of judicial review because she had received multiple negative internal decisions and because the transposition point could not be determined within the internal appeals system.
- The Applicant also contended the appeals officer failed to give adequate reasons and failed to address a formal request for a preliminary reference to the CJEU.
Respondents' Arguments
- The Respondents (through Attorney Carroll) submitted that EU case law requires that a "worker" pursue an effective and genuine economic activity and that marginal, ancillary or purely voluntary family assistance does not qualify. They emphasised the need for an employment-type relationship with subordination and remuneration (which may be in kind) connected to an economic or commercial activity.
- The Respondents submitted that the 2015 Regulations did not fail to transpose the Directive: although the wording differs, reg. 6 reflects the CJEU's interpretation of "worker" and is not impermissibly narrow.
- The Respondents argued that carer's allowance is part of The State's social assistance system: it is means-tested, funded from general taxation, not intended to facilitate labour-market entry and thus falls within the scope of the "unreasonable burden" test under the Directive (relying on Brey, Munteanu and related authorities).
- On the "unreasonable burden" assessment, the Respondents submitted that the appeals officer was entitled to conclude that, on the evidence (the Applicant's resources assessed as zero), the Applicant was likely to become an unreasonable burden on the social assistance system and that a prospective assessment of duration was permissible.
- The Respondents pointed out that the Applicant provided no evidence of comprehensive sickness insurance and that invoking informal access to A&E without evidence did not satisfy the reg. 6(3)(a)(ii) insurance requirement (distinguishing VI).
- Procedurally, the Respondents raised a preliminary objection that the Applicant had not pursued all statutory remedies; the Respondents further contended that the appeals officer gave adequate reasons and was not obliged to make a reference to the CJEU.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For (as stated in the judgment) |
Application by the Court in this case |
| Steymann v Staatssecretaris van Justitie (Case C‑196/87) |
The CJEU held that activities performed by members of a community may constitute an economic activity where they form part of the community's commercial activities and where services provided to members (board, lodging, pocket money) may operate as an indirect quid pro quo for genuine and effective work. |
The court accepted Steymann shows remuneration may be in kind where the work is part of a commercial economic activity. It distinguished Steymann from the present facts because the Applicant's care was voluntary family assistance and not part of a commercial economic activity. |
| Levin v Staatssecretaris van Justitie [1982] ECR 1035 |
Part‑time work can qualify, but only if it is "effective and genuine" and not so small as to be "purely marginal and ancillary"; the rules apply to persons pursuing an economic activity. |
The court relied on Levin to emphasise that worker status requires real and genuine economic activity; Levin underpins the exclusion of marginal/ancillary or purely voluntary activities from worker status. |
| Bettray v Staatssecretaris van Justitie (Case C‑344/87) |
The concept of "worker" is autonomous and broad but must meet objective criteria: the essential feature is that a person performs services for and under the direction of another in return for remuneration; schemes intended to rehabilitate do not create worker status. |
The court used Bettray to support the proposition that rehabilitation schemes and non‑economic activities are excluded from the Treaty concept of "worker" and to highlight the requirement of subordination and remuneration. |
| Trojani v Centre Public d'Aide Sociale de Bruxelles (Case C‑456/02) |
The CJEU reiterated that remuneration can be in kind but that activities which are merely a means of rehabilitation or reintegration do not constitute a real and genuine economic activity. |
The court cited Trojani to note that while benefits in kind can be consideration for services, such a finding depends on whether the activities form part of an employment-like economic relationship—which the court found absent here. |
| Razneas v Chief Appeals Officer [2022] IECA 227 |
The Court of Appeal summarised principles derived from the CJEU: (i) the concept of "worker" is broadly defined but requires objective employment‑type criteria; (ii) income level is not determinative; (iii) rehabilitation schemes excluded; (iv) job‑seekers are not workers; (v) participation in community-based life may, in some circumstances, confer worker status where services are provided in return for accommodation/food. |
The court adopted Razneas as a close domestic guide to applying CJEU authority and applied Razneas' summary to the facts, concluding the Applicant did not meet the criteria for worker status. |
| Pensionsversicherungsanstalt v Peter Brey (Case C‑140/12) |
The concept of "social assistance" must be interpreted by reference to the objective pursued by the contested provision; it covers assistance that can be claimed by individuals without resources to meet basic needs who may become a burden on public finances; Member States may assess prospective effects. |
The court relied on Brey to determine that carer's allowance falls within the concept of social assistance and that national authorities may assess whether granting the benefit would create an unreasonable burden, including by considering prospective duration. |
| Munteanu v Minister for Social Protection [2019] IECA 236 |
Domestic authority endorsing that where a payment is not intended to facilitate access to the labour market, it is to be regarded as social assistance. |
The court cited Munteanu to support the conclusion that carer's allowance is social assistance rather than a labour‑market facilitation payment. |
| Griga v Chief Appeals Officer [2017] IEHC 602 |
The national authority is entitled to have regard prospectively to the likely duration of benefits in assessing whether an applicant would become an unreasonable burden on the social assistance system. |
The court relied on Griga to uphold the appeals officer's approach in considering that the Applicant's likely need for long‑term support was properly relevant to the unreasonable burden assessment. |
| VI v Commissioners for Her Majesty's Revenue and Customs (Case C‑247/20) |
The CJEU held that affiliation to a public sickness insurance system in the host Member State can constitute "comprehensive sickness insurance" for the purposes of the Directive. |
The court distinguished VI: it found no evidence that the Applicant was affiliated to a public sickness insurance scheme in The State and rejected the suggestion that informal access to A&E (without evidence) satisfied reg. 6(3)(a)(ii). |
| Hughes v Chief Adjudication Officer, Belfast [1992] ECR 1‑04839 |
The nature of a social welfare payment must be examined by reference to its purpose and the conditions on which it is granted, not merely its national classification. |
The court applied Hughes to evaluate carer's allowance by reference to its purpose and statutory scheme rather than technical classification under Regulation 883/2004. |
| GV v Chief Appeals Officer (Case 488/21) |
The CJEU held that the derived right of residence of a dependent direct relative (ascending line) who was dependent on a worker prior to entering the host state cannot be made conditional upon continued dependency by reason of the grant of social assistance; that would undermine equal treatment of migrant workers. |
The court considered GV and rejected the Applicant's attempt to derive a right of residence from it because the Applicant was not shown to have been dependent on the worker (her daughter) before coming to The State; GV did not create an independent route to residence in these facts. |
| Petecel v Minister for Social Protection [2020] IESC 25 |
The Supreme Court recognised that it may be unreasonable to require litigants to pursue parallel internal appeals and judicial review on certain EU/transposition points. |
The court relied on Petecel in deciding that the Applicant was entitled to pursue judicial review rather than being obliged to continue internal appeals given the transposition point and prior negative decisions. |
| Mallak v Minister for Justice, Equality and Law Reform [2012] IESC 59 |
Authority on the duty to give reasons: decision‑makers must state in general terms what decision has been reached and why, sufficient to enable the recipient to seek advice or appeal; not required to be a detailed judgment. |
The court cited Mallak (with other authorities) in concluding the appeals officer's 12‑page review decision contained adequate reasons. |
| Connolly v An Bord Pleanála [2021] 2 IR 752 |
Authority on the content and sufficiency of reasons required from administrative decision‑makers (duty to give reasons). |
The court relied on these authorities in assessing the sufficiency of the appeals officer's reasons and found them adequate. |
| Balz v An Bord Pleanála [2023] 3 IR 751 |
Authority addressing the appropriate level of reasons required of administrative decision‑makers. |
The court treated Balz together with the other authorities as supporting the conclusion that the appeals officer's reasons were sufficient. |
| NECI v Labour Court [2022] 3 IR 515 |
Authority on the duty to give reasons and its practical content. |
The court considered NECI in the context of the appeals officer's duty to give reasons and concluded the decision met the required standard. |
Court's Reasoning and Analysis
The court proceeded in a structured way, addressing preliminary/process issues before turning to the legal questions on the merits.
1. Preliminary and procedural objections
The Respondents argued the Applicant had not pursued all statutory remedies and that judicial review should be refused. The court declined to refuse relief on that ground. It accepted the Applicant's point that (a) she had already received multiple negative internal decisions and (b) the transposition point (alleging improper transposition of the Directive) could not properly be determined within the internal appeals system. The court relied on Petecel to hold that it need not require the Applicant to undertake further internal process in these circumstances.
2. Mootness
The Applicant had left The State and any ongoing entitlement for future payment would require a fresh application. The court nevertheless held the dispute was not moot because a live controversy existed about eligibility on the date of the application (2 February 2022) and for the period up to the Applicant's departure (27 May 2024); a successful challenge could lead to remittal and an award of arrears.
3. The central question: was the Applicant a "worker" with a right to reside?
The court examined EU case law and domestic authority closely. The analysis distilled the controlling principles: the concept of "worker" under EU law is autonomous and must be given a broad meaning, but it requires objectively identifiable features of an employment relationship—most centrally that a person performs services for and under the direction of another in return for remuneration. The activity must be "real and genuine" (not marginal or ancillary) and must form part of an economic activity. The case law also confirms remuneration can be in kind (board, lodging, pocket money) but only where those benefits can be regarded as the quid pro quo for services that form part of an economic/commercial activity (Steymann).
Applying those principles, the court emphasised the following points of fact and law that determined the outcome:
- There was no evidence that the Applicant was engaged in an economic or commercial activity in The State on her own account or as part of a commercial activity carried on by her daughter.
- There was no evidence of any employment relationship with the daughter and son‑in‑law: the Applicant provided services voluntarily in response to a family need, was not shown to work under the direction and control characteristic of employment, and was free to stop providing care (which she did in May 2024).
- Although remuneration need not be wages in the narrow sense, the rationale for recognising in‑kind benefits as remuneration in Steymann was that the benefits were provided as the indirect quid pro quo for services performed as part of commercial activities; that factual matrix was absent here.
For these reasons, and having regard to Levin, Bettray, Trojani and Razneas, the court concluded the Applicant was not a "worker" under Art. 7(1)(a) of the Directive and reg. 6(3)(a)(i) of the 2015 Regulations; accordingly she did not possess a right of residence on the worker basis and could not be regarded as habitually resident for the purposes of the 2005 Act.
4. Transposition and request for a reference to the CJEU
The Applicant argued the 2015 Regulations impermissibly narrowed the Directive by using the wording "is in employment or in self‑employment". The court held that the difference in wording was not material because the Regulations, when read in the context of CJEU authority on the meaning of "worker", captured the EU law concept. The court therefore found no failure to transpose the Directive.
The Applicant had asked the court to refer a question to the CJEU on whether the Applicant's activities could constitute worker status. The court refused to make such a reference because the CJEU's jurisprudence already provides clear guidance as to the tests to be applied; a reference in these circumstances would amount to asking the CJEU to apply its tests to the specific facts of this case rather than to resolve an unsettled point of EU law.
5. Economically inactive route and the "unreasonable burden" test (reg. 6(3)(a)(ii))
The court accepted the Respondents' submissions and the authority of Brey and domestic cases such as Munteanu and Griga in concluding that carer's allowance is part of The State's social assistance system. The reasoning was grounded in the statutory design and purpose: carer's allowance is funded from general taxation, sits within Part 3 of the 2005 Act (social assistance), is mean‑tested and is intended to provide income support to persons whose ability to earn is reduced by caring responsibilities. On that basis the payment falls within the "social assistance system" and is therefore amenable to the "unreasonable burden" test in Art. 7(1)(b).
On the facts, the Applicant's resources had been assessed by the inspecting officer as zero; she co‑owned a modest property abroad and the husband had a small pension. The court found this assessment unchallenged and held the appeals officer was entitled to conclude that the Applicant did not have sufficient resources to avoid becoming an unreasonable burden on the social assistance system. The appeals officer was also entitled to take a prospective view as to likely duration of any benefit (Griga and Brey) and conclude that the Applicant's need was unlikely to be short‑term.
Finally, the Applicant furnished no evidence that she held comprehensive sickness insurance at the material time. The court rejected the submission that undocumented or asserted access to A&E amounted to evidence of comprehensive sickness insurance (distinguishing VI). For these reasons the appeals officer could not properly have found a right of residence under reg. 6(3)(a)(ii).
6. Reasons, requests for reference and ancillary points
The court addressed the Applicant's complaint that the appeals officer failed to give adequate reasons and had not expressly ruled on the request for a CJEU reference. Citing established authorities on the content of reasons (Mallak, Connolly, Balz, NECI), the court found the 12‑page review decision to be comprehensive, to set out the law and reasons with sufficient clarity, and to be logically open on the evidence. The absence of any express statement that the appeals officer refused a reference did not render the decision invalid; decision‑makers are not obliged to make CJEU references and there is no ground to set the decision aside on that basis.
Holding and Implications
THE APPLICANT'S RELIEFS WERE REFUSED.
Holding (core ruling): The court refused the judicial review reliefs sought by the Applicant. The appeals officer's decision dated 2 April 2024 was held to be lawful and adequately reasoned. The court concluded the Applicant (a) was not a "worker" within the meaning of EU law and the 2015 Regulations at the date of application and therefore had no right of residence for that reason; and (b) did not satisfy the criteria for a right of residence as an economically inactive person because she lacked sufficient resources and had not shown comprehensive sickness insurance. Consequently she could not satisfy the statutory habitual residence requirement for carer's allowance.
Direct consequences for the parties: The Respondents' refusal to pay carer's allowance to the Applicant in the decision(s) under challenge stands. The proposed final order (as recorded in the judgment) is to refuse the reliefs sought and to continue the existing order prohibiting publication of material that could identify the children concerned. The judgment notes the possibility of remittal to the appeals officer if any further proceedings require it, and the procedural steps proposed for final orders and costs.
Broader implications: The court applied established CJEU and domestic authority (as catalogued above) and did not identify or lay down a novel principle of EU or domestic law. The decision reiterates the established test for "worker" (effective and genuine economic activity, services under direction in return for remuneration which may be in kind where part of economic activity) and confirms that carer's allowance is social assistance subject to the "unreasonable burden" assessment. The judgment therefore applies settled law to the facts rather than creating new precedent.
Practical observation recorded by the court: the judgment contains an explicit judicial acknowledgement of the difficult real‑world circumstances faced by the Applicant's family, but the court emphasised that those considerations do not permit departure from the statutory eligibility criteria for social welfare payments.
If any particular point in this summary appears to require further factual detail, refer to the full judgment (as anonymised above) for verbatim findings of fact and the court's own wording of the legal analysis. This summary reproduces only what the judgment itself states and does not add or infer facts beyond that text.