I move amendment No. 11a:
In page 10, before section 17, but in Part 2, to insert the following new section:
"17.-The Principal Act is amended to the extent specified in Schedule 1 to this Act.”.
I intend to bring forward an amendment to the Bill on Report Stage which will place the definition of a spouse in the non-statutory social welfare arrangements, for example, in the free schemes, on the same legal footing as that currently used in the statutory arrangements, for example, in all weekly payments. We had a short conversation about this. I will bring forward a small number of amendments of a technical nature which are consequential on the acceptance of the introduction of the habitual residence test amendments, if they are agreed by the committee. As I indicated, I will facilitate the members with a briefing note and my officials will be available tomorrow, at whatever time we can arrange, for a short briefing on the issue, if that is in agreement with the Chair. I will circulate the text of the amendments for the purposes of information.
Returning to these amendments under consideration on Committee Stage, the free movement of persons is one of the fundamental freedoms guaranteed by Community law and includes the right to live and work in another member state. The right of free movement does not only concern workers, but other categories of people such as students, pensioners and EU citizens in general. While the EU treaties provide for full freedom for citizens of the accession states to move freely through the enlarged EU, they do not provide for automatic access to labour markets. Under the accession treaties, the EU has put in place a transitional measure by which existing member states will be able to exercise discretion as to the extent of access of persons from the new member states to the respective labour markets.
Unlike other member states, Ireland is not imposing any restrictions on the number of people from the new member states who wish to come here and work. I emphasise that this Government gave a commitment that EU citizens who want to come and work here from 1 May are very welcome to do so and we will honour that commitment.
The Government has decided to put in place a number of measures which will restrict access to qualification for certain social welfare payments by introducing an habitual residency test which will act as an additional condition to be satisfied by a person claiming a social assistance payment or child benefit. The new condition is designed to safeguard our social welfare system from abuse by restricting access to social assistance and child benefit payments for people from other countries who have little or no connection with Ireland.
The new condition will require a claimant for social assistance to be habitually resident in the State or the rest of the Common Travel Area, which is Great Britain, Northern Ireland, the Channel Islands and the Isle of Man, for a substantial continuous period. If he or she has been present in the State for less than a two-year period, it shall be presumed he or she is not habitually resident and the onus will be on the person to prove otherwise.
In addition, if a claimant satisfied the two-year provision, he or she will still be required to satisfy the general requirements relating to habitual residence. A person must establish a degree of permanency to be considered habitually resident in the State.
The term habitual resident is well known in other jurisdictions and in EU legislation and has been clarified in an EU court judgment. It is intended to convey a degree of permanence in the person's residency here. Clearly the duration and continuity of their residence would be important factors, as would be their intentions.
The following factors, as set down by EU case law, will be considered in determining whether a person satisfied the habitual residency test: length and continuity of residence; employment prospects; reasons for coming to Ireland; future intentions; and centre of interests, for example, family, home or connections. In addition, people who have resided in the Common Travel Area will be regarded as habitually resident for the purposes of the new test.
Each case will be examined on the facts and the person's degree of permanence in the State, and no single factor will be conclusive. People who claim welfare payments but do not satisfy the habitual residency test will be assisted to return home and the necessary arrangements will be made in co-operation with the Department of Justice, Equality and Law Reform.
I emphasise that these measures are being introduced to ensure our social welfare system does not become overburdened. It is a prudent and sensible measure. Up to now non-nationals residing here could claim social assistance payments without satisfying a residency test. All other countries in the European Union impose residency restrictions on entitlements to social welfare benefits.
The new residence condition will apply to the following social assistance schemes: unemployment assistance, old age non-contributory and blind pensions, widows' and widowers' and orphans' non-contributory pensions, one-parent family payment, carer's allowance, disability allowance and supplementary welfare other than one-off exceptional and urgent need payments. It will also apply to persons claiming child benefit. However, it will not apply to social insurance based payments such as unemployment benefit, disability benefit and retirement pension where entitlement is gained by the payment of social insurance contributions.
It is anticipated that the vast majority of Irish emigrants returning from abroad, where the need arises, will qualify under the habitual residency test. In other cases it is quite possible that such immigrants will qualify for social insurance based schemes, for example, contributory pensions, if they had been working in another EU member state or in a country with which Ireland has a bilateral social security agreement.
Under EU Regulation 1408/71, it is possible for an unemployed person, under certain conditions, to export his or her unemployment benefit for up to three months while seeking work in another member state. The regulation allows people to exercise their right to free movement within the EU and to have their social insurance based entitlements such as a contributory pension exported to another member state.
The new habitual residency condition is based on the case law of the European Court of Justice with regard to the application of Regulation 1408/71, which co-ordinates the social security rights of people who move within the EU. The key factors which will be used to determine if a person satisfies the test comply with EU law. The factors were set down by the European Court of Justice in the Swaddling case. The Attorney General's office has confirmed that the proposed amendment to the legislation follows that case law adopted by the court.
The proposed measures will apply to all applicants for the social assistance schemes concerned and child benefit, and not just citizens of the accession countries. The onus will be on the claimant to satisfy the Department of Social and Family Affairs that, as well as satisfying any other eligibility conditions for the particular scheme applied for, the claimant is habitually resident in the State. Each case will be examined on its own merits and the facts relating to a claimants level of residence in the State ascertained. The new condition of residence will in the main apply to those people from member states who are seeking work and who have not imported with them the benefit of social insurance contributions paid in another member state or those who are economically inactive.