Dáil Éireann Debate, Tuesday - 13 March 2012
247 Deputy Thomas Pringle asked the Minister for Social Protection if she will supply the definitive criteria for the habitual residence condition for a person who has been living in the common travel area; and if she will make a statement on the matter. [13471/12]
Amharc ar fhreagraThe requirement to be habitually resident in Ireland was introduced as a qualifying condition for certain social assistance schemes and child benefit with effect from 1 May 2004. The effect of the condition is that a person whose habitual residence is elsewhere would not normally be entitled to social welfare assistance or child benefit payments on arrival in Ireland. Each case received for a determination on the Habitual Residence Condition (HRC) is dealt with in its own right and a decision is based on application of the legislation and guidelines to the particular individual circumstances of each case.
There is no discrimination on grounds of nationality in social welfare legislation and to introduce such a provision would be contrary to the equality principles that Ireland has adopted in its equality legislation, the Treaties of the European Community and the Charter of Fundamental Rights, and other international conventions.
The determination of a person's habitual residence is made in accordance with Section 246 of the Social Welfare Consolidation Act 2005, as amended. A person arriving in Ireland from the Common Travel Area has the right to reside, and subject to satisfying the five factors would be deemed to have fulfilled the HRC. Subsection (4) specifically directs the deciding officer to "take into consideration all the circumstances of the case, including, in particular, the following:
(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 specified factors have been derived from European Court of Justice case law which examined the concept of habitual residence in the context of social welfare benefits. The Department's guidelines go on to point out that "No single factor is conclusive. The evidential weight to be attributed to each factor will depend on the circumstances of each case. It is necessary to weigh up all the information and balance the evidence for and against an applicant satisfying the habitual residence condition".
The following examples are acceptable as proof of permanent return to Ireland:
Documented evidence of transportation of personal possessions;
Proof of cessation of employment;
Proof of termination of lease on rented property or proof of sale of home;
Evidence of closure of financial accounts and transfer of funds;
Evidence of completion of studies abroad (where applicable);
Copy of passport and expiration of visa at the time they returned.
This list is not exhaustive.
This is generally sufficient to enable the deciding officer to determine whether their present circumstances in Ireland indicate a temporary visit or habitual residence.
The Habitual Residence Guidelines have recently been reviewed and the updated version is available on the Departments website at:
http://www.welfare.ie/EN/Policy/EU/Euguide/Pages/euguideindex.aspx
Any applicant who disagrees with the decision on a case has the right to request a review of that decision and/or appeal to the independent Social Welfare Appeals Office.
