Habitual residence: fact or (legal) fiction? Case C- C 255/13, I v. Health Service Executive

Transcription

1 Trinity College Dublin, Ireland From the SelectedWorks of Mel Cousins 2014 Habitual residence: fact or (legal) fiction? Case C- C 255/13, I v. Health Service Executive Mel Cousins Available at:

2 Habitual residence: fact or (legal) fiction? Case C- C-255/13, I v. Health Service Executive 1 Although habitual residence would appear to be a fact specific concept, 2 the Court of Justice (CJEU) has increasingly interpreted habitual residence as a legal concept which links a person to the social security system of a specific Member State. Thus, for example, in Wencel, the CJEU ruled that a person could not have a habitual residence in two Member States at the same time. 3 The Court has perhaps taken this approach to its most extreme lengths in the case of I where it has held that a man who had, due to illness, been staying in Germany for 11 years was in fact habitually resident in Ireland. This note looks at this case the first reference to the CJEU by the Republic of Ireland courts in relation to Regulation 883/2204 (formerly Regulation 1408/71) since Ireland s accession. 4 The facts The facts of the case were undeniably tragic. Mr. I, who was an Irish national resident in Ireland, travelled to Germany in 2002 for the purposes of holidaying with his girlfriend, a Romanian national. 5 While on holiday he was admitted as an emergency patient to Uni Klinik, Düsseldorf and was subsequently diagnosed as suffering from a rare, bilateral infarct to his brain stem. This led to him suffering severe quadriplegia and loss of motor function. Over the period from 2002, Mr. I unfortunately remained seriously ill and required constant care and attention from Uni Klinik. 6 At various points between 2004 and 2007 Mr. I engaged in some sporadic academic work by delivering occasional lectures in Germany. On a few occasions after his illness he was able to travel abroad, albeit for a short period and under medical supervision. He travelled to Lisbon in October, 2004 and also travelled to Ireland on a few occasions, most recently in However, the referring court found that it was accepted that at present it would be all but impossible for Mr. [I] to travel to Ireland, at least if he were confined to travelling by scheduled airlines. 7 Mr. I originally received treatment under form E111, i.e. as emergency treatment required by citizens of other EU member states when visiting another Member State. 8 In March, 2003 his status was altered and from that point he received his treatment pursuant to Form 1 [2014] ECR I Commissioners for Her Majesty s Revenue and Customs v Spiridonova, [2014] NICA 63 at [26]. 3 Case C-589/10, Wencel [2013] ECR I-000. One can see that this is a necessary conclusion from the fact that habitual residence, as discussed below, is one of the connecting factors for the determination of the applicable legislation under Regulation 883/2004. However, it is clear that a person could factually be resident in two countries at the same time as the courts have found in relation to the very similar concept of ordinary residence under UK law: AA v Secretary of State for Work and Pensions [2013] UKUT There have been several references on this and related issues from the Northern Ireland courts and tribunals. 5 The facts are most fully set out in the order of the Irish High Court which referred the case: Flood -v- Health Service Executive [2013] IEHC Subsequent to the hearing by the CJEU, Mr. I died on 7 April Flood -v- Health Service Executive [2013] IEHC 192 at [10]. 8 Art. 19 of Regulation 883/2004.

3 E However, in November 2011 the Irish Health Services Executive (the public body responsible for the administration of health care) refused to grant Mr. I a renewal of the E112 form on the basis that it considered that he was no longer resident in Ireland. 10 The issue in the case was whether Mr. I should be considered to be resident in Ireland or, alternatively, in Germany, for the purposes of EU social security legislation (Regulation 883/2004). Believing that the legal answer was unclear, the Irish High Court asked the CJEU Is an insured citizen of a Member State ( the First Member State ) who has been gravely ill for eleven years as a result of a serious medical condition which first manifested itself when that person was resident in the First Member State but was on holiday in another Member State ( the Second Member State ) to be regarded as staying in that Member State for that period for the purposes of either Article 19(1) or, alternatively, Article 20(1) and Article 20(2) of Regulation No. 883/2004 where the person in question has been effectively compelled by reason of his acute medical illness and the convenient proximity of specialist medical care physically to remain in the Second Member State for that period? 11 The law Article 19 of Regulation 883/ ( Stay outside the competent Member State ) provides: 1. an insured person and the members of his/her family staying in a Member State other than the competent Member State shall be entitled to the benefits in kind which become necessary on medical grounds during their stay, taking into account the nature of the benefits and the expected length of the stay. These benefits shall be provided on behalf of the competent institution by the institution of the place of stay, in accordance with the provisions of the legislation it applies, as though the persons concerned were insured under the said legislation. Article 20 ( Travel with the purpose of receiving benefits in kind authorisation to receive appropriate treatment outside the Member State of residence ) further provides that: 1. an insured person travelling to another Member State with the purpose of receiving benefits in kind during the stay shall seek authorisation from the competent institution. 2. An insured person who is authorised by the competent institution to go to another Member State with the purpose of receiving the treatment appropriate to his/her condition shall receive the benefits in kind provided, on behalf of the competent institution, by the institution of the place of stay, in accordance with the provisions of the legislation it applies, as though he/she were insured under the said legislation. The authorisation shall be accorded where the treatment in question is among the benefits 9 Art. 20 of Regulation 883/ Pending the outcome of proceedings, the HSE agreed to continue to cover Mr. I s healthcare costs on an ex gratia basis. 11 Flood -v- Health Service Executive [2013] IEHC 192 at [15]. 12 Although Regulation 1408/71 was applicable when Mr. I originally fell ill, as the Advocate General pointed out (at para 27 of his opinion) the substantive legal situation on this point has, on the whole, not changed under the new regulation.

4 provided for by the legislation in the Member State where the person concerned resides and where he/she cannot be given such treatment within a time limit which is medically justifiable, taking into account his/her current state of health and the probable course of his/her illness.. In Regulation 883/2004 stay is defined as temporary residence. 13 It appears (perhaps surprisingly) that there had been no previous discussion of the concept of stay by the CJEU. 14 Residence is defined in the Regulation as the place where a person habitually resides. 15 In contrast to the concept of stay, there has been considerable judicial consideration of what habitual residence involves and the Court has ruled that residence is where the habitual centre of the person s interests is situated. 16 This judicial definition is now set out in Article 11 ( Elements for determining residence ) of Regulation 987/2009 which provides: 1. Where there is a difference of views between the institutions of two or more Member States about the determination of the residence of a person to whom [Regulation 883/2004] applies, these institutions shall establish by common agreement the centre of interests of the person concerned, based on an overall assessment of all available information relating to relevant facts, which may include, as appropriate: (a) (b) the duration and continuity of presence on the territory of the Member States concerned; the person s situation, including: (i) the nature and the specific characteristics of any activity pursued, in particular the place where such activity is habitually pursued, the stability of the activity, and the duration of any work contract; (ii) his family status and family ties; (iii) the exercise of any non-remunerated activity; (iv) in the case of students, the source of their income; (v) his housing situation, in particular how permanent it is; (vi) the Member State in which the person is deemed to reside for taxation purposes. 2. Where the consideration of the various criteria based on relevant facts as set out in paragraph 1 does not lead to agreement between the institutions concerned, the person s intention, as it appears from such facts and circumstances, especially the reasons that led the person to move, shall be considered to be decisive for establishing that person s actual place of residence. 13 Article 1(k) of Regulation 883/ Opinion, para Article 1(j) of Regulation 883/ See, for example, Case 76/76 Di Paolo [1977] ECR 315; Case C-102/91 Knoch [1992] ECR I-4341, Case C-90/07 Swaddling [1999] ECR I-96.

5 The Judgement 17 The Court began by pointing out that Regulation 883/2004 sets out the rules governing the determination of the legislation to be applied: Those rules were intended not only to ensure that the persons concerned are not left without social security cover because there is no legislation which is applicable to them, but also to ensure that the persons concerned are subject to the social security scheme of only one Member State, so that the complications arising from more than one system of national legislation being applicable are avoided. 18 Residence is one of the connecting factors for the determination of the legislation applicable. 19 Having outlined the criteria to be taken into account in assessing a person s habitual residence (now set out in Art. 11 of Regulation 987/2009 above), the Court recalled that, as Advocate General Wahl observed, 20 that list did not establish any order of precedence for the various criteria set out in Article 11(1). 21 Rather tenuously, the Court concluded from this that since the determination of the place of residence of a person who is covered by insurance for social security purposes must be based on a whole range of factors, the simple fact that such a person has remained in a Member State, even continuously over a long period, does not necessarily mean that he resides in that State within the meaning of Article 1(j) of Regulation No 883/ The Court went on to recall that the length of residence in the Member State in which payment of a benefit is sought cannot be regarded as an intrinsic element of the concept of residence. 23 The Court agreed with the Advocate General s conclusion 24 that, despite the fact that Regulation 883/2004 defines stay as temporary residence, such a stay does not necessarily involve a visit of short duration. 25 The Court concluded that the mere (sic.) fact that Mr. I stayed in Germany for 11 years was not therefore sufficient in itself alone for him to be regarded as having been resident in that Member State The Court largely followed the approach of Advocate General Wahl so his opinion is referred to only insofar as it throws further light on the Court s approach 18 Judgement at para Judgement at pars Opinion, para Ibid, para Ibid, para Citing C-90/07 Swaddling [1999] ECR I-96. The Court did not recall the rather different facts of that case which are discussed below and also chose to ignore the fact that Art 11(1) of Regulations 987/2009 specifically refers to the duration and continuity of presence on the territory of the Member States concerned as a relevant factor in determining habitual residence. 24 Opinion at paras Judgement at para Ibid, para 53.

6 The Court pointed out that it is for the national court to determine where Mr. I was resident on the basis of the criteria set out in Art. 11. Nonetheless it recalled that the CJEU could provide guidance to the national court. 27 It specified that The factors to be taken into account by the national court include, in particular, the fact that, although I lived in Germany for a long time, that situation does not reflect a personal choice on his part, since, according to the actual wording of the question referred, he was compelled by reason of his acute medical illness and the convenient proximity of specialist medical care physically to remain in that Member State for that period. 28 Rather strangely, however, the Court went on to say that it was for the national court to verify whether, having regard to the circumstances of the main proceedings, I was fit to travel and whether medical treatment equivalent to that he was receiving in Germany was available in Ireland. 29 The Court, therefore, concluded that where an EU national (resident in one Member State) suffers a sudden serious illness while on holiday in a second Member State and is compelled to remain in the latter State for 11 years as a result of that illness and due to the availability of specialist medical care, such a person must be regarded as staying in the second Member State if the habitual centre of his interests remained in the first Member State. It would be for the national court to determine the habitual centre of interests by assessing all the relevant facts and taking into account that person s intention, as may be discerned from those facts, the mere fact that that person has remained in the second Member State for a long time not being sufficient in itself alone for him to be regarded as residing in that Member State. 30 Discussion Given the course of events, it is not clear that the national court will be required to make this determination but it is rather clear what the CJEU thought it should decide. While one can understand the Court s (and the Advocate General s) sympathy for Mr. I, it is not necessarily clear that the approach adopted was the most appropriate. To a non-lawyer (or anybody not familiar with the complex working of Regulation 883/2004) it might be surprising that a person who had not been in a country for any sustained period of time in 11 years could be considered to be resident there. Indeed, one might say that in the 27 Ibid, para Ibid, para Ibid., para 57. One can only speculate as to how, at this stage in events, the national court might be able to do this. 30 Ibid, para 59.

7 ordinary sense of the term, Mr. I clearly was not resident 31 in Ireland. Thus the concept of habitual residence at least in this case has become a legal fiction. In Swaddling, the Court considered a provision of UK law under which habitual residence presupposed an appreciable period of residence in the United Kingdom. In Mr Swaddling's case, this was assessed as being of eight weeks' duration. He had returned to the UK with the intention of residing there but was only found to be habitually resident after the expiry of eight weeks. The Court full statement on the issue of the length of residence was as follows: For the purposes of [the assessment of habitual residence], however, the length of residence in the Member State in which payment of the benefit at issue is sought cannot be regarded as an intrinsic element of the concept of residence within the meaning of Article 10a of Regulation No 1408/71. In particular, when, as in the present case, an employed person, on returning to his State of origin after exercising his right to freedom of movement, has made it clear at the time of applying for income support that he intends to remain in his State of origin, where his close relatives live - whilst expressing his readiness, should the need arise in the context of some future employment, to travel from time to time to other Member States - he cannot be deemed not to satisfy the condition concerning residence within the meaning of Article 10a merely because the period of residence completed in his State of origin is too short. 32 Thus the Court emphasised the relative ease with which a person could acquire habitual residence. Indeed, in countries such as the UK and Ireland which have habitual residence requirements as a condition of access to certain benefits, it has been a long process to convince adjudication authorities that residence can be acquired within weeks or months 33 rather than years and that connections to the person s home state (such as an emotional attachment or family members residing there) do not outweigh actual residence. Although, the facts are very different, nonetheless this approach sits rather uneasily with the Court s reluctance to see Mr. I s legal residence change, no matter where he actually lived. In the I case, the Court might, for example, have accepted the approach proposed by the HSE, i.e. that Mr. I s residence (and as result his affiliation to the national scheme of social security) had eventually transferred to Germany. The HSE stated that it understood that the relevant German authorities were agreeable to Mr I being covered by the German system for the purposes of his health care. 34 The Advocate General was unsympathetic to the HSE approach seeing it as an attempt by a Member State to export to other Member States the cost of providing medical treatment to its residents. 35 While accepting that in principle, 31 Resident is defined a living somewhere on a long-term basis. 32 Case C-90/07 Swaddling [1999] ECR I-96 at para 30. It should be noted that, unlike the I case, the earlier case concerned the length of residence rather than the fact of residence. 33 Or indeed from day 1 as in Mr. Swaddling s case. 34 Opinion, at para Opinion, at para 22.

8 Mr. I could apply to join the German system, he noted that there was no proof that the German authorities would accept such an application and refused to entertain the HSE s argument. It seems rather extraordinary that over the many months this case was before the courts, neither the parties nor the CJEU sought to establish the facts on this rather important issue. 36 Alternatively, the Court might more narrowly have simply held that, on the very specific facts of this case, where Mr. I was as the Advocate General said a medical refugee, 37 Art. 19 of Regulation 883/2004 should continue to apply for so long as a person is unable, for medical reasons, to return to the competent state. In any event, it is submitted that the ruling should be read in the light of those very specific facts and should not be given any broader significance in the general interpretation of the concept of habitual residence. The Court might well, in this case, have avoided making sweeping statements about length of residence not being an intrinsic part of the concept of residence a statement, as we have shown above, originally made in an entirely different context. The Court and the Advocate General could also have avoided elevating the person s intention 38 to equal the criteria set out in Art 11(1) such as the duration and continuity of presence on the territory of the Member States concerned. It is one thing to read legislation is a purposive manner. It is rather another to misread legislation and misapply case law in an attempt to find the answer you want in a difficult case. It is unfortunate that Regulation 883/2004 does not provide for a less complex method of resolving such disputes than that of a preliminary reference to the CJEU. It is further unfortunate that the CJEU seemingly does not have the mechanisms to resolve issues of fact (such as whether the German authorities were agreeable to assume responsibility for Mr I and what that might have involved) and is prepared to make decisions in ignorance of those facts. While the Court s willingness to empathise with the applicant s very unfortunate circumstances is to be applauded, the Court s persistence, in this and many other cases, in stretching the terms of the Regulation to fit unexpected factual circumstances does not make the Regulations easier to administer or necessarily more effective in providing support 36 The Advocate General might fairly have criticised the HSE and the Irish Government for failing to adduce proof that Mr. I would not, in fact, be left without adequate social security cover. However, his suggestion (at para 53) that Article 3(4) of Regulation 987/2009 requires that the institutions of other Member States involved in a potential transfer of residence must be given an opportunity to state whether they agree with the finding that the person concerned has changed residence, as such a finding is clearly likely to have financial repercussions for them, is arguably unnecessary since Art 11 already provides a specific procedure where there is a difference of views about the determination of residence. (Of course, in this case, the Irish authorities suggested that there was no such difference). In addition, his reference (at para 51) to the wishes of the insured person is arguably irrelevant. The determination of residence is, insofar as possible, to be made on the basis of objective facts and even the Court pointed out that (at para 54) that intention must be assessed in the light of the objective facts and circumstances of the case ; a mere declaration of intention to reside in a particular place is not, in itself, sufficient. 37 Though again, the basic facts are unclear. The Advocate General noted that (at para 25) that it was not entirely clear whether it is actually possible for Mr I to receive comparable treatment in Ireland. 38 Described in Art 11(2) as only to be called into play where the factors in Art 11(1) do not lead to agreement as to the country of residence.

9 to people moving within the EU. Indeed, a more complicated system which at this stage almost nobody understands may not be the most effective in providing such support. Of course, common sense has not always been an intrinsic element of the Court s jurisprudence.