Transcript The Habitual Residence Condition PILA Training 18 August 2010

The Habitual Residence
Condition
PILA Training
18 August 2010
FLAC – the Free Legal
Advice Centres
What is FLAC?

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A independent human rights organisation
dedicated to the realisation of equal access
to justice for all
valuing the use of law as a way to achieve
change
Social welfare law is one of our priority areas
• Strategic casework
• Focussed campaigns
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FLAC’s work in the Area
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Information Line
•Queries from general public
•Queries and referrals from other bodies
including CICs, NGOs, advocates
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Advice Centres
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Casework
•Queries from our volunteers
•Limited but number of ongoing cases
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Habitual Residence Condition
(HRC)
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Introduced on 1 May 2004
•EU enlargement
•To prevent ‘welfare tourism’
•British government introducing residency
condition
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Applied to:
•All means tested allowances
•Child Benefit
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Irish Legislation
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Section 246 of the Social Welfare Consolidation
Act 2005 (Principal Act)
Section 246 of Principal act amended by
• s. 30 of the Social Welfare and Pensions Act 2007
(Swaddling criteria put on statutory footing)
• ss. 186D and 161G of Social Welfare and Pensions Act
2008 (HRC applied to Domiciliary Care Allowance and
Blind Allowance)
• S. 15 of the Social Welfare and Pensions (No. 2) Act
2009 (Certain categories of person excluded from
satisfying HRC)
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‘Right to reside’ test
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Introduced in December 2009
•HRC is or should be a question of fact
•Looks at connection to the State and centre
of interest
•Department of Social Protection has treated
this as a test of claimant’s legal status
•Right to reside is a question of law
•Is the individual entitled to reside or remain in
the State?
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Application Procedure
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Application made to Department of
Social Protection, or in case of
Supplementary Welfare Allowance to
HSE
•Claimant may be asked to complete a
HRC1 form in addition to the form for
particular payment
•HRC decided on case-by-case basis
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Five Swaddling Criteria
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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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Length of Time
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Longer a person spends in one country
then more likely it is that he or she will
transfer his or her centre of interest and
develop a connection
No set time limit
•May become habitually resident after a short
period of time – will depend on other factors
•Reason why person came to the State is
important as may determine the length of
time the claimant will stay
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Two-year rule
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Department used two-year rule when
HRC first introduced but no longer
applies despite wording in legislation
•European Code of Social Security does not
permit states to set such time limits
•European Union was concerned it inhibited
freedom of movement

Introduced five factors in 2007 in place of
two-year rule
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Common Travel Area

Time spent living in CTA should be
taken into account
•Should be treated as a period of
residence in the State
•But not does not automatically mean
claimant is habitually resident
•Other four factors other than ‘length of
time’ will be considered
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Absence from the State
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Short period of absence from State
should not be counted e.g. holiday
Irish person in stable employment abroad
•May lose habitual residence while away
unless maintain connection to the State
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Non-Irish national who moves to another
country on permanent basis
•Will lose habitual residence
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Resumption of Habitual
Residence
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Person who leaves State for specific
period of time e.g. 1 year work visa
should resume habitual residence on
return
•Look at whether he or she maintained a
connection
•Reasons for return
•Does claimant intend to resettle in the
State
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Returning Irish Emigrants
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Depending on length of time may not be
able to resume habitual residence, instead
may be treated as beginning a new period of
residence
• If returned on a long-term permanent basis then
could be considered habitually resident
immediately upon return
• Decision-maker will look at circumstances and
consider Swaddling factors
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Swaddling decision referred to returning
citizens
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Returning Irish Emigrants Carers
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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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EU Nationals
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EU nationals must have a right of
residence
• Entitled to remain for 3 months if self-sufficient,
working or if he or she has not become a
‘burden on the State’
• Five factors still to be assessed
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EU Citizens Directive
• Legally residing in State for five years or more
has permanent right of residence
• Loses right if absent for two years or more
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EU Migrant Workers and
Job-seekers
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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

A jobseeker who moves to Ireland from
another EEA country in order to seek
employment
• Subject to the HRC in the usual manner
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More Information
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See our website www.flac.ie
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