Under EU social welfare law, it is illegal to distinguish between EU workers on the basis of nationality alone. Therefore, in the context of the opening of the Irish labour market to workers from 12 new EU member states in 2004, it was considered necessary to protect Ireland from ‘welfare tourism' by ensuring that people with little connection to this country could not qualify for welfare payments immediately upon arrival in Ireland. The effect of the habitual residency requirement is that a person whose habitual residence is elsewhere is not paid certain social welfare payments on arrival in Ireland, regardless of citizenship, nationality, immigration status or any other factor. Decisions concerning habitual residence are subject to five factors which have been laid down by the European Court of Justice, and which are now incorporated into our domestic social welfare legislation. These are:
(a) the length and continuity of residence in the State or in any other particular country;
(b) the length and purpose of any absence from the State;
(c) the nature and pattern of the person's employment;
(d) the person's main centre of interest, and
(e) the future intentions of the person concerned as they appear from all the circumstances.
The vast majority of Irish nationals applying for social welfare support satisfy the HRC condition. Difficulties might arise however if, for example, the person's main centre of interest is still abroad — e.g. they have a spouse living abroad or still own property abroad etc. Between 1 May 2004 and 31 December 2009, of those Irish citizens whose circumstances called for detailed investigation in this respect, 89% were found to satisfy the habitual residence condition. Only 11% were refused on HRC grounds.
Irish nationals returning to live in Ireland on a permanent basis should experience no difficulty in demonstrating that they satisfy the requirements of the Habitual Residence Condition. The guidelines published by the Department address this as follows: in the context of the first factor listed above, they make it clear that a person may attain habitual residence on arrival here. The guidelines state:
"On the other hand, a short stay in Ireland does not automatically prove that an applicant has maintained his/her habitual residence abroad. Periods of residence abroad and the nature of that residence prior to the date of the latest arrival in Ireland may be relevant in assessing what is the person's main centre of interest and settled intention.
Consider the length and continuity of the applicant's residence in Ireland and in the other country:
has s/he lived in Ireland before, if so for how long?
has the applicant stayed in different countries outside Ireland?
how long did the applicant reside in the previous country before coming or returning to Ireland?
are there any remaining ties with his/her former country of residence?"
Later, in the context of determining the applicant's main centre of interest, the Guidelines say:
". . . . . . a person who previously lived in another country or countries may now have moved to Ireland on a permanent basis and established a main centre of interest here. For example, a person who has retired from missionary or other service abroad and has chosen to resettle in Ireland should be considered to have his/her main centre of interest here."
The Guidelines are kept under constant review to ensure that they give clear guidance to deciding officers in dealing with the relevant issues and are updated or amended as the need arises. Every notice of disallowance sets out the claimant's rights to request a review of the decision or to lodge an appeal to the Social Welfare Appeals Office. These options allow every claimant the opportunity to produce additional evidence in support of their case, and to have any error of judgment addressed appropriately.