The Operation of the Habitual Residence Condition

Tress Seminar27th May 2009

FLAC – the Free Legal Advice Centres

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What is FLAC?

A independent human rights organisation campaigning for equal access to justice for

all, through advocacy and strategic litigation

to contribute to the eradication of social and economic exclusion.

valuing the use of law as a way to achieve change

FLAC’s work in the Area

Information Line•Queries from general public

•Queries and referrals from other bodies including CICs, NGOs, advocates

Advice Centres•Queries from our volunteers

Casework•Limited but number of ongoing cases

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Habitual Residence Condition (HRC)

Introduced on 1 May 2004•EU enlargement

•To prevent ‘welfare tourism’

•British government introducing residency condition

Applied to:•All means tested allowances

•Child Benefit

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Introduction of HRC

Social Welfare (Miscellaneous Provisions) Act, 2004 (Section 17)(Commencement) Order, 2004

•Presumption that person is not habitually resident if present in the State or Common Travel Area for a “substantial continuous period” less than 2 years

•Onus is on applicant to rebut presumption

EU Concerns about HRC

22 December 2004 the EU issued infringement proceedings against the Irish government

•Prohibited freedom of movement

•Indirect discrimination based on nationality

Proceedings dropped in April 2006

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2 Year Residency Requirement

Officials from DSFA met with members of the Commission in May 2005

•“2 year presumption contained in national legislation is not a determining factor” (Review of the HRC carried out by the DSFA in 2006)

•Considered other factors set down by European Court of Justice

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European Code of Social Security

Ireland is a signatory to the Code and its 32nd report to the Council of Europe the Irish government stated:

•“Ireland is aware that the relevant jurisprudence of the European Court of Justice precludes reliance on any specific duration of residence (e.g. two years) for the purposes of establishing habitual residence and has ensured that no such specific period is the determining factor in any HRC decision”.

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HRC Internal Review 2006

DSFA issued a number of recommendations arising from this review including:•Drafting of expanded guidelines for decision

makers

•Comprehensive training for decision makers

•Criteria set down in ECJ caselaw should be included in the relevant provisions of legislation in the “interests of clarity and legal certainty”.

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Irish Legislation

Section 246 of the Social Welfare Consolidation Act 2005 (Principal Act)•2 year residency requirement originally

included

•No definition of the term “habitual residence condition” provided

Amended by s. 30 of the Social Welfare and Pensions Act 2007•Swaddling criteria put on statutory footing

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Swaddling Criteria

Case C-90/97 Swaddling v. Adjudication Officer • (a) length and continuity of residence in the

State or in any other particular country;

• (b) length and purpose of any absence from the State;

• (c) nature and pattern of the person’s employment;

• (d) person’s main centre of interest; and

• (e) future intentions of the person concerned as they appear from all the circumstances

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Operational GuidelinesEU Migrant Workers

EU Migrant workers

•Do not have to satisfy HRC in order to receive Family Benefits in respect of dependents who are either habitually resident in Ireland or another EEA State

•May be entitled to SWA if he/she has been employed since coming to Ireland

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Romanian and Bulgarian Nationals

A Romanian or Bulgarian national is permitted to engage in insurable employment within the State if:

• He/she holds a valid work permit

• He/she was working in Ireland at the date of accession on a valid work permit which was valid for at least 12 months

• He/she was working in Ireland at the date of accession on a Stamp 4 for at least 12 months

He/she can therefore satisfy HRC

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DSFA Operational GuidelinesEU Jobseekers

A jobseeker who moves to Ireland from another EEA country in order to seek employment

• Subject to the HRC in the usual manner

•Five factors must be examined

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DSFA Operational GuidelinesNon-EEA workers

Non-EEA nationals will satisfy the HRC for the purposes of Family Benefits if he/she

•Has previously worked in another EEA State and

• Is currently employed or self-employed

•Holds a current residence permit

• Is lawfully employed

• Is subject to PRSI

•Has dependants who reside in Ireland OR another EEA state

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DSFA Operational GuidelinesCertain Categories of Non-EEA nationals

who satisfy HRC

A person who has one of the following types of permission to stay in Ireland is usually considered to be habitually resident• Refugee

• Programme refugee

• Person given temporary or humanitarian leave to remain

• Parent of Irish Born Children

• Employment Permit holder who has one month of insurable employment or 6 months self-employment

• Spouse or family member who has come to Ireland under family reunification

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DSFA Operational GuidelinesCertain categories of Non-EEA nationals who the

DSFA consider do not satisfy HRC

Persons who have become undocumented Asylum Seekers

• “Such persons, while awaiting decisions on their applications or who have appealed a refusal of refugee status, cannot satisfy either the habitual residence condition or the normal residence condition for any DSFA payments”.

• Department cites Supreme Court decision Goncescu and others-v-Minister for Justice, Equality and Law Reform (July 2003)

Distinction made between a “legal right to reside, not mere presence only”.

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FLAC submission to IHRCIssues of Concern Raised

Inconsistency in HRC decisions Delays at first instance and within appeals system Each case should be considered on its own merits and

within the terms of the relevant legislation The family unit concept should be recognised for

purposes of Child Benefit where the father satisfies HRC

Goncescu should not be relied upon as it does not deal with habitual residence nor social welfare entitlements

A comprehensive version of Social Welfare Appeals decisions should be published to ensure transparency, consistency and confidence in the process

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Recent developments

FLAC has received an increase in queries related to the HRC:

•2 year rule still being applied

•EU workers who have been made redundant have had payments stopped as they are no longer considered to be habitually resident

•One caller who was a British national was told she had not been in Ireland long enough to be considered habitually resident even though she had been continuously resident in the CTA

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Family Unit Concept

A number of cases have come to light where the mother does not satisfy the HRC but the father does but CB is refused as the parents are not cohabiting

•Administrative procedures of DSFA changed in 2005 to allow for the family unit concept but DSFA maintains that this only applies where the family is living together in one household

•Article 8 of the ECHR provides for respect for family and private life

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Cases Involving Domestic Violence

EU/Non-EEA spouse dependent on partner’s immigration status as EU migrant worker• Leaves family home due to domestic violence

• Not considered habitually resident in her own right to claim social welfare assistance or Child Benefit

• Cannot easilyaccess appropriate services including shelters

• Should be allowed to rely on Directive2004/38/EC which provides for the right of EU citizens and family members to move and reside freely within Member States

• Metock v Min Justice, Equality and Law Reform (25 July 2008) judgment also relevant

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Returning Irish Emigrants

Returning Irish emigrants acting as carers for elderly or infirm relatives•Will not satisfy HRC if they maintain their centre

of interest in another country i.e. Spouse or children, family home, job

• Issue raised at Joint Oireachtas Committee on Social and Family Affairs on 20 February 2008

•Minister stated that situation could not be rectified without giving other EU nationals the right to come here with sick/elderly relatives and claim Carer’s Allowance

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Current Social Welfare Appeal Cases

Several asylum seekers have been found habitually resident and granted a payment on appeal but the Department of Social and Family Affairs has refused to make payment

The DSFA has sought a review of these decisions by the Chief Appeals Officer under section 318 of the Social Welfare (Consolidation) Act 2005 as amended

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Judicial Reviews

FLAC has taken one JR against the HSE in respect of an asylum seeker who was granted Blind Allowance on appeal but was subsequently not paid (July 2008)• Case was settled out of court and payment made

FLAC has been given leave to judicially review the refusal of the Department of Social & Family Affairs to pay Child Benefit to an asylum seeker who successfully appealed the rejection of her initial application

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HRC Going Forward Training and support must be given to Deciding Officers

and Community Welfare Officers to ensure that correct decisions on HRC are being made

Each case must be decided on its own merits within the terms of the relevant legislation

There must be some flexibility in dealing with individual cases when applying the HRC in situations where there are sensitive or unusual circumstances e.g. In the case of marital breakdown due to domestic violence

The economic downturn must not be used as a reason to deny people their rights on the basis of the HRC where it is clear that they satisfy the condition

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More Information

See our website www.flac.ie

• Presentation on the HRC to the Joint Oireachtas Committee on Social and Family Affairs

• FLAC concerns on application of Habitual Residence Requirement – submission to Irish Human Rights Commission

• FLAC Pre-Budget Submission 2009

• FLAC news

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