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No job required to export child benefit, Court of Justice holds

No job required to export child benefit, Court of Justice holds

Under EU law it is not necessary that a person be working in a member state in order to be entitled to family benefits in respect of his children living in another member state. So ruled the Court of Justice of the European Union in C-322/17 Bogatu v Minister for Social Protection. The press release is here.

Mr Bogatu was Romanian and had been living in Ireland since 2003. He had been employed until 2009, when he lost his job in the severe economic recession and applied for child benefit for his two children living in Romania. Mr Bogatu also received unemployment benefit (with a contribution) for a year, then unemployment benefit (without a contribution) for three years and then sickness benefit for a further two years, until 2015.

The Irish authorities decided that Mr Bogatu met the test for claiming family benefits with the exception of the 2010-2013 period, when he was claiming non-contributory unemployment benefit. The Irish High Court referred the case to Luxembourg on the point of whether Mr Bogatu was required to have either pursued an activity as an employed person during the period in dispute, or been in receipt of cash benefits because of his employment.

The court ruled that EU law does not require a person to have a specific status in order to receive family benefits. It also clarified that family benefits in respect of children living in another member state are payable on a number of different grounds and not just that that the person is employed.

This case is an interesting addition to the already controversial decision in C-378/14 Bundesagentur für Arbeit — Familienkasse Sachsen v Trapkowski. In that case, the Court of Justuce said that a parent can claim child benefit in one member state and send it back to another member state where the child is resident. This sparked outrage in some circles. Prime Minister David Cameron said at the time:

People cannot understand how those who have not paid in can immediately take out, and they find it incomprehensible that a family coming from another EU country can claim child benefit from the UK at UK rates and send it back to children still living in their home country. When trust in the European Union is already so low, we cannot leave injustices like this to fester.

Figures from 2014 showed that £31m was being paid to families of children living overseas — two thirds of whom were living in Poland. In pre-referendum days, this judgment would have given our politicians another chance to scaremonger about the EU. But given how close we are to Brexit, I wonder how high up the priorities list implementing the decision is likely to be?

Bilaal Shabbir

Bilaal is a Senior Accredited Paralegal at MBS Solicitors in Edinburgh. He is Head of the Court of Session Department and specialises in immigration law, family law, commercial dispute resolution and professional discipline. He was named as 'Paralegal of the Year' at the Scottish Legal Awards 2018.

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