I propose to take Questions Nos. 91 and 93 together.
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 members states to their respective labour markets.
Unlike other member states, Ireland is not imposing any restrictions on the numbers 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 wish 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 a habitual residence 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 the UK, Channel Islands and the Isle of Man, for a substantial continuous period. If they have been present in the State for less than the two year period it shall be presumed that they are not habitually resident. The onus will be on persons to prove otherwise. Even if a person is more than two years in the State, he or she will still be required to satisfy the general requirements relating to habitual residence. 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 which is a prudent and sensible measure. All other countries in the European Union impose residency restrictions on entitlement to social welfare benefits. The new residence condition will apply to social assistance payments and child benefit. However, it will not apply to social insurance-based payments such as disability benefit, retirement pensions and where entitlement is gained by the payment of social insurance contributions.
A person must establish a degree of permanence to be considered habitually resident in the State. The term "habitual residence" is well known in other jurisdictions and in EU legislation and has been clarified in EU court judgments. It is intended to convey a degree of permanence in the person's residence, clearly the duration and continuity of their residence would be important factors and also their intentions. The factors, as set down by EU case law, to be considered in determining whether a person satisfies the habitual residence test would include: length and continuity of residence; employment prospects; reasons for coming to Ireland; future intentions; centre of interest, for example, family and home connections. People who have resided in the common travel area, the UK, Channel Islands and the Isle of Man, will be regarded as habitually resident for the purpose 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.
With regard to Irish emigrants returning from abroad, it is expected that the vast majority will be able to prove habitual residence without difficulty because of, for example, their strong family ties with this country, previous residence in the State, etc. It is also possible that such emigrants will qualify for social insurance-based entitlements.
My Department has not been in contact with the competent institutions in the new member states regarding the likely numbers who may wish to avail of their rights to transfer their social welfare payments after 1 May 2004. However, under EU Regulation 1408/71 it is possible for an unemployed person under certain conditions to "export" their unemployment benefit for up to three months while seeking work in another member state. The regulations also allow people to exercise their right to free movement within the EU and to have their social insurance-based entitlements such as contributory pensions exported to another member state. These arrangements are not affected by the habitual residence condition.