We thank you for your invitation to appear before the joint committee this afternoon for a discussion on the habitual residence condition. I propose to provide committee members with background information on the introduction of the habitual residence condition, or HRC, the criteria that apply to HRC decisions, the impact it has had and some issues that have been raised by interested parties about its operation.
A requirement to be habitually resident in Ireland was first introduced as a qualifying condition for receipt of certain assistance payments and child benefit with effect from 1 May 2004. I will return to the subject of the child benefit issue in more detail at a later stage. The HRC was introduced in the context of the Government's decision to open the Irish labour market to workers from the ten new EU member states, without the transitional limitations that were imposed at that time by most of the other member states. Regardless of nationality, all applicants for the following payments are required to be habitually resident in the State. These are jobseeker's allowance, the State pension, which is non-contributory for persons aged over 66, blind pension, widow's, widower's and orphan's non-contributory pensions, the one-parent family payment, the carer's allowance, the disability allowance, the supplementary welfare allowance, other than once-off exceptional and urgent needs payments, and child benefit.
The habitual residence condition means that persons who have not worked in Ireland or who have little or no connection to this country cannot avail of assistance schemes or child benefit. In particular, a person who has not obtained permission to work here and who does not have the means to be fully self-supporting will not satisfy the habitual residence condition. The condition does not apply to insurance benefits, which are payable to persons who satisfy the contribution and other conditions. An applicant for one of the affected payments, regardless of nationality, who has spent most or all of his or her life in Ireland will normally satisfy the habitual residence condition. Persons who have lived in other parts of the common travel area, such as Northern Ireland, and who then move with the intention of settling here are quite likely to satisfy the habitual residence condition. Migrant workers from other countries who have genuinely made Ireland their permanent home will also satisfy the habitual residence condition for receipt of social assistance payments and child benefit. An applicant who satisfies the HRC must also satisfy the other conditions of entitlement to receive the payment claimed.
What are the criteria that apply to the habitual residence condition? Habitual residence implies a more settled state than mere physical presence, essentially a stable association between the applicant and the country from which payment is claimed. The European Court of Justice has determined that the following five factors are relevant in determining whether a person is habitually resident, as follows: the applicant's main centre of interest; the length and continuity of residence in a particular country; the length and purpose of absence from a country; the nature and pattern of employment in a country; and the future intention of applicant concerned as it appears from all the circumstances.
These factors were included in Irish social welfare legislation in 2007 and their application is outlined in more detail in decisions guidelines drawn up by the Department for our decisions staff. No single factor is conclusive and the five factors are not necessarily exhaustive. The circumstances of each case will dictate what information is needed, and the evidential weight to be attributed to each factor.
I will now address the practical operation of the habitual residence condition, HRC. While decisions to the effect that applicants satisfy HRC can be made in the vast majority — more than 90% — of cases at claim acceptance stage on the basis of answers given on the primary claim forms, complex cases are examined in more detail. In the case of claims for jobseeker's allowance and one-parent family payment, complex cases are decided within a central HRC unit in the Department' s offices at Townsend Street in Dublin. Statutorily appointed deciding officers, or in the case of supplementary welfare allowance, officers of the health boards who are duly authorised to determine entitlement, decide on whether a person satisfies the HRC. Each case is dealt with in its own right and a decision is based on application of the guidelines to the circumstances of that case. Decisions can be appealed to the independent social welfare appeals office or in the case of supplementary welfare allowance to a health board appeals officer and, if necessary subsequently, to the independent social welfare appeals office.
A person who fails to satisfy the habitual residence condition and is suffering financial hardship may apply to the Health Service Executive for an exceptional needs payment under the supplementary welfare allowance scheme. Such payments are not subject to the habitual residence condition. Non-nationals who do not have any means of support may also be assisted by the Reception and Integration Agency to travel back to their home country.
I will now outline some high level summary statistics. I have already mentioned that the vast majority of all claims for the relevant social welfare payments satisfy HRC and that the evidence for such a determination is obvious at claim acceptance stage. The following statistics, therefore, refer only to complex HRC cases that required a more detailed examination of the HRC issue. During the period from 1 May 2004, when HRC was introduced, to 31 December 2007, the overall total number of claims that required such detailed examination was 64,666 and these were made by persons from more than 150 countries. Overall, 75% of the claims involving complex HRC issues were allowed. Disallowances amounted to 25% of the total decided and, of those disallowed, the vast majority, 73%, were in regard to jobseeker's allowance claims. These overall decisions statistics represent the average rates across all schemes and for claimants of all nationalities.
The operation of the condition was reviewed by the Department in 2006 and the report of the review was published in 2007. The full content of the review may be accessed on the Department's website www.welfare.ie. Following the review the operational guidelines for the scheme are currently being revised to ensure consistency in the application of the condition and to take account of the variety of individual situations which can arise.
I will now touch on some issues that have arisen since the HRC was introduced. The issues in question include the following: EU-EEA nationals; religious missionary cases; returning Irish emigrants; and child benefit for the children of asylum seekers. With regard to child benefit for EU-EEA nationals, EU Regulation 1408/71 deals with social security benefits for migrant workers. The provisions of these regulations require that all EU nationals are treated in the same way as Irish nationals. For example, people who are nationals of countries within the European Economic Area and nationals of Switzerland who are employed or self-employed in Ireland and who pay Irish social insurance contributions, PRSI, or are receiving Irish jobseeker's benefit do not have to satisfy the habitual residence condition to receive family benefits. Since May 2005 one-parent family payments and family income supplement have been classified as family benefits along with non-contributory guardian's payment and child benefit.
The same regulation also confirms the right to child benefit from the country in which the worker is employed, regardless of where the children reside. On this basis, Irish child benefit must be payable to EU nationals who are working in Ireland while taking account of any child benefit entitlement in the member state their children are living in. For this purpose a "worker" also includes a person who has worked in the host country and is subsequently unemployed and in receipt of jobseeker's benefit. The application of HRC to jobseeker's allowance or disability allowance to claims from EU nationals who do not have an employment history in Ireland is fully compatible with the EU regulations.
In December 2004, the European Commission raised a number of issues concerning the compliance of HRC with EU law in regard to workers and their families. Following a full examination of the matter the Commission satisfied itself that Ireland complies fully with the European Court of Justice case law in this respect and terminated the infringement proceedings in April 2006.
With regard to religious missionary cases, in early 2005, representatives of the Department met the Irish Missionary Union to discuss the entitlement to non-contributory State pension for Irish missionaries returning temporarily to Ireland for short periods. Prior to the introduction of HRC such persons had often claimed and been paid the pension when they returned to Ireland for holidays or medical treatment. The Department advised that all applicants for the schemes covered by HRC had to satisfy the condition and that an exception could not be made in favour of any group or nationality. The Department further advised that missionaries who were coming back to Ireland on a permanent basis, for example, to retire, would still qualify for a non-contributory State pension on the grounds that their centre of interest was now here. While exact details of occupation of claimants assessed under the habitual residence condition are not maintained, it is estimated that approximately 100 non-contributory pension claims made by religious persons during temporary visits to Ireland have been disallowed since 1 May 2004.
With regard to returning Irish emigrants, for the period from 1 May 2004 to 31 December 2007, the number of claims with complex HRC issues decided in respect of Irish citizens was 16,242, of which 1,684 or approximately 10% were disallowed. EU legislation prohibits discrimination between nationals of EU member states in the context of freedom of movement of workers and their access to social security or social assistance entitlements. Therefore, national legislation cannot provide advantages to non-resident Irish nationals on short visits here without extending the provisions to all EU nationals under the same conditions. However, it must be emphatically emphasised that Irish nationals returning to live here on a permanent basis should experience no difficulty in demonstrating that they satisfy the requirements of the habitual residence condition.
With regard to child benefit for the children of asylum seekers, there has always been a residence condition for child benefit. When introduced in 1944 in section 3 of the Children's Allowances Act 1944, a two-year residence condition was applied to non-Irish claimants. A revision in 1946 in the Children's Allowances (Amendment) Act provided that a qualified child must be ordinarily resident in the State, and defined a qualified person as a person with whom a qualified child normally resides. These provisions are still retained in sections 219 and 220 of the Social Welfare Consolidation Act 2005. The inclusion of child benefit within the scope of HRC makes the application of this condition to the claimant more explicit than the previous wording, and replaces "ordinary" residence with "habitual" residence, a term more frequently used and more clearly defined in social security case law.
A person who is still in the asylum process has not yet received permission to reside in Ireland and, therefore, cannot be considered to be resident, let alone habitually resident. The footnote in the speaking note provided refers to a judgment in 2003 by the Chief Justice, Mr. Justice Murray, on this point. For this reason, persons within the asylum-seeking process do not qualify for child benefit. The welfare and rights of asylum seekers and their families are addressed by the direct provision supports that are the responsibility of the Department of Justice, Equality and Law Reform, not the Department of Social and Family Affairs. Where refugee status or right-to-remain status is granted to such persons, they are accepted as being habitually resident and are therefore entitled to child benefit in respect of their qualifying children. With regard to migrant workers, to ensure compliance with the European code of social security, the child benefit guidelines of the Department indicate that periods of bona fide employment or self-employment should normally be accepted as evidence of habitual residence.
That concludes my summary of the operation of the habitual residence condition. I and my colleagues will be pleased to expand or explain any aspects of the matter as may be required by the committee.
