Case Studies » Maternity Benefit » Maternity Benefit - from 2015 Annual Report (ref: 2015/16)

Background: The appellant, a non-EEA national, was disallowed Maternity Benefit on the grounds that she was not an employed contributor as she was required to hold a work permit to engage in employment in Ireland.  She had worked in Ireland and held an employment permit (green card) and later had permission to live in Ireland and work without a work permit, having been granted a Stamp 4 (immigration stamp).  Following her marriage, she moved with her husband to live in Northern Ireland and both continued to work in Ireland.  In his determination, the Deciding Officer held that the appellant, on expiry of her Stamp 4 status, was required to have a work permit in order to work in Ireland.  The appellant’s husband is a United Kingdom national who had worked in Ireland and had a full social insurance contribution record for the previous eight years.  He had continued to work in Ireland after he and the appellant moved to Northern Ireland to live. 

Consideration: The Appeals Officer observed that the appeal involved complex EU law.  He noted that the status of the appellant in the context of her husband’s migrant worker status in Ireland was not considered prior to the decision to disallow her claim to Maternity Benefit.  He made reference to Directive 2004/38/EC, which consolidated a range of EU law including Article 11 of Regulation (EEC) 1612/68.  This Article is now Article 23 of Directive 2004/38/EC, and the relevant provision was transposed into national law by Regulation 18(1) (b) of the European Communities (Free Movement of Persons) (No. 2) Regulations, 2006, S.I. No. 656 of 2006.

The Appeals Officer referred to Section 2 of the Employment Permits Act, 2003, which provides that a non-national may not engage in employment in the State unless he or she has a work permit.  However, he noted that subsection (10) of Section 2 (as amended by Section 3(b) of the Employment Permit Act, 2006) provides that the requirement for a foreign national to obtain a work permit does not apply to those persons who are entitled to enter the State and to take up employment pursuant to the treaties governing the European Communities. 

The Appeals Officer referred also to Article 11 of Regulation (EEC) 1612/68, which was interpreted by the European Court of Justice in a Judgment of 30 June 2006, Case C-10/05 Mattern, to mean that the non-EU national spouse of an EU national migrant worker in a Member State had the right to work only in the Member State in which the EU national spouse is employed.  He drew attention also to a case dealt with by the High Court in 2010, in Decsi & Ors –v- Minister for Justice, Equality and Law Reform [2010] IEHC 342, where that Court reiterated that the non-EEA spouse of a non-Irish EU national (working in Ireland) had a right to work in Ireland without a work permit.

The Appeals Officer concluded that the appellant, as the spouse of a United Kingdom national who works in Ireland and lives in Northern Ireland, did not require a work permit in order to work in Ireland, in accordance with the provisions of EU law.  He determined, therefore, that the appellant was an employed contributor for purpose of her claim to Maternity Benefit and was entitled to that benefit where the other statutory qualifying conditions were met.

Outcome: Appeal allowed.