Tuesday, 11 December 2018

Questions (526)

Willie O'Dea

Question:

526. Deputy Willie O'Dea asked the Minister for Employment Affairs and Social Protection if she has examined the habitual residence clause in view of the increasing number of emigrants returning here; and if she will make a statement on the matter. [51754/18]

View answer

Written answers (Question to Employment)

My Department regularly reviews the habitual residence guidelines to ensure they are fit for purpose. The guidelines, although drafted for Departmental decision-makers, are published online and offer detailed guidance on the most appropriate course of action when applying the criteria with respect to habitual residence.

They include specific guidance relating to returning migrants or those resuming previous residence in the State. This includes the arrangements made by the Department with the registered charity Safe Home to assist with any difficulties Irish emigrants may have in satisfying the provisions with respect to habitual residence.

In addition, training in the assessment of the provisions with respect of habitual residence is available to all decision-makers within my Department. The training places a strong emphasis on case studies and the previous experiences of the participants.

The Department has an information leaflet (SW108), which outlines the key issues with respect to the habitual residence provisions and their application, as well as a Q&A and further contact information.

The Citizens Information Board, under the auspices of my Department, provides a comprehensive and readily accessible guide to the provisions with respect to habitual residence.

Each assistance claim receives a determination in relation to the Habitual Residence Condition in its own right and a decision is based on application of the legislation and guidelines to the particular individual circumstances of each case. The determination of a person’s habitual residence is made in accordance with five factors which are set out in legislation, as follows:

(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.

These five factors have been derived from European Court of Justice case law, and are generally sufficient to enable the deciding officer to determine whether a person’s present circumstances in Ireland indicate a temporary visit or habitual residence.

In addition to a review of any decision by my Department, claimants can also appeal to the Social Welfare Appeals Office (SWAO). This Office functions independently of the Department and is responsible for determining appeals against decisions on social welfare entitlements.