Habitual Residence: Fact or (Legal) Fiction? Commentary on the Case of I v Health Service Executive at the European Court of Justice
| Author | Mel Cousins |
| DOI | 10.1177/138826271401600406 |
| Date | 01 December 2014 |
| Published date | 01 December 2014 |
| Subject Matter | Recent Case Law |
European Jour nal of Social Sec urity, Volume 16 (2014), No. 4 385
HABITUAL RESIDENCE:
FACT OR (LEGAL) FICTION?
COMMENTARY ON THE CASE OF
IvHEALTH SERVICE EXECUTIVE AT
THE EUROPEAN COURT OF JUSTICE
M C*
Although habitual residence would appear to be a ‘fact speci c’ concept,1 the Court
of Justice (CJEU) has increasingly interpreted habitual residence as a legal concept
which links a pers on to the social security sy stem of a speci c Member State. us, for
example, in Wenc el, t he CJEU ruled that a person could not have a habitual residence
in two Member States at the same time.2 e Court has perhaps ta ken this approach
to its most extreme lengths in the case of I v. Health Service Executive3, 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. is note looks at this case – the rst 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
1. THE FACTS
e facts of the case were unden iably tragic. Mr. I, who was an Irish nationa l resident
in Ireland, travelled to Germany in 2002 for the purposes of holidaying with his
* Dr. Mel Cousins is a Res earch Associate at Trin ity College, Dubli n; Address: School of Soci al Work
and Social Pol icy, Trinity Col lege, Dublin 2, Ireland; phone : +353 1 896 1000; e-mai l: cousinsm@
tcd.ie.
1 Commissioners for He r Majesty’s Revenue and Cus toms v Spiridonova, [2014] NICA 63 at [26].
2 Case C-589/10, Wencel [2013] ECR I-000. One can see th at this is a nece ssary conclu sion from the fac t
that habitua l residence, as discussed be low, is one of the connecting factors for the d etermination
of the applicable leg islation under Regul ation 883/2004. However, it is clear t hat a person could
factual ly be resident in two countries at the s ame time as the courts have fou nd in relation to the
very simil ar concept of ‘ordinary residence’ und er UK law: AA v Secretary of State fo r Work and
Pensions [2013] UKUT 406.
3 Case C- C-255/13, [2014] ECR I-000.
4 ere have been sever al references on this and rel ated issues from the Nort hern Ireland courts a nd
tribunals.
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