The habitual residence condition applies to all claimants for certain social welfare payments, regardless of nationality. Any person who makes a claim for jobseeker's allowance, child benefit, one parent family payment, disability allowance, State pension non-contributory, carer's allowance, widow's non-contributory, guardian's non-contributory payment, blind pension or supplementary welfare allowance must be habitually resident in the State.
Decisions concerning habitual residence are subject to five factors which are set out in social welfare legislation. The five factors 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.
Habitual residence cannot be determined simply by reference to a specific period of residence. The length and continuity of a person's residence must be considered along with the other factors. In determining whether a person is habitually resident in the State, all relevant evidence is taken into account including the period before the person arrived here, the present period and the future intentions of the applicant as evidenced by his/her actions.
There is a provision in social welfare legislation that: " it shall be presumed, until the contrary is shown, that a person is not habitually resident in the State at the date of the making of the application concerned unless he has been present in the State or any other part of the Common Travel Area for a continuous period of 2 years ending on that date .”
This is a rebuttable presumption and it does not mean that an applicant can be automatically be considered to be "not habitually resident" because he or she has not resided here for 2 years. For instance, a returning Irish emigrant or a person coming to live with a spouse who is permanently resident here could be habitually resident from the date of their arrival.
Equally, it does not mean that an applicant is automatically considered to be habitually resident in the State if he or she has been here for 2 years or more. A person could be working or studying here temporarily for longer than 2 years and continue to retain their habitual residence in another country during that period. In all cases, therefore, habitual residence cannot be determined by reference to a period of time alone and the decision must be based on all the relevant factors.