Transcript Slide 1

Social Welfare Law in the
Public Interest:
FLAC Casework on the HRC
16 April 2010
Pila Conference
FLAC – the Free Legal
Advice Centres
What is FLAC?
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An 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
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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
Casework
Policy submissions and reports
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Child Benefit Campaign
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FLAC identified a potential violation of children’s
rights by denying Child Benefit to children whose
parents did not satisfy HRC
One of the main groups affected by this
change in the law were asylum seekers and
those seeking other forms of protection
Political campaign developed into one of
strategic litigation
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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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Introduction of HRC
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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
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EU Concerns about HRC
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22 December 2004 the EU issued
infringement proceedings against the
Irish government
•Prohibited freedom of movement
•Indirect discrimination based on
nationality
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Proceedings dropped in April 2006
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2 Year Residency Requirement
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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
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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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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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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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Operational Guidelines for
Decision Makers
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Issued in June/July 2008
• Blanket policy to refuse social assistance payments to
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”.
• Cited Supreme Court decision Goncescu and othersv-Minister for Justice, Equality and Law Reform (July
2003)
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Reasons Given for Refusals
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Status in Ireland remains undecided
Future intentions to remain here are uncertain
Centre of interest is not Ireland
From the evidence produced to date there is
nothing to substantiate habitual residence in the
State
Similar decisions do not set a precedent
Reliance on Goncescu case
Distinction made between a “legal right to reside,
not mere presence only”.
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Initial Response to Refusals by
Social Welfare Appeals Office
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Inconsistency in decisions by Appeals Officers but some
relied on following decision of Chief Appeals Officer
(CAO) which said that an asylum seeker or person seeking
another form of protection could be found habitually
resident
In 2007 the CAO held:
“It seems to me therefore, that the failure of the State to provide
for the expeditious hearing of asylum appeals, thereby giving rise
to the artificial status of entitled to remain pending appeal,
should not be used as a reason for penalising appellants who
can exercise no control over the timescale within which their
artificial status will be finally determined.”
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FLAC’s arguments
against refusals
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Each case should be considered on its own
individual merits
Similar cases should be treated alike to ensure
consistency
Goncescu did not deal with social welfare nor
habitual residence
Asylum seekers legally present in the State and given
temporary residence certificate
Guidelines ultra vires (outside the powers of) the
legislation at the time as asylum seekers not
specifically excluded
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Reviews by CAO
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In 2008 four asylum seekers were found habitually
resident and granted a payment on appeal but the
Department of Social and Family Affairs refused to
make payment
The Department sought a review of these decisions
by the CAO under section 318 of the Principal Act
These appeals had been taken by OPEN, Integrating
Ireland and FLAC
In five further similar appeals where a negative
decision was reached, FLAC sought a review by the
CAO
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CAO’s decisions
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In all nine decisions the CAO found in favour of the
appellant. He held:
• Individual circumstances must be taken into account
• “The facts of the matter are that the Goncescu case
did not have a social welfare relevance and that the
judgment pre-dated the introduction of the habitual
residence legislation”.
• The legislation did not exclude any category of
persons from accessing social welfare payments
• AG’s advice to Department stated that events which
occurred during time in asylum process could count
towards habitual residence
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Judicial Reviews
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JR against the HSE in respect of an asylum seeker
who was granted Blind Allowance on appeal but
was subsequently not paid (July 2008)
JR against the DSFA to pay Child Benefit to an
asylum seeker who successfully appealed the
rejection of her initial application but was refused
payment during the CAO review process
Both cases were settled out of court and payment
made
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Social Welfare and Pensions
(No. 2) Act 2009
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In December 2009 an amendment was introduced
to exclude all individuals in the asylum, leave to
remain or subsidiary protection processes from being
able to satisfy the HRC
Introduced one week after the CAO’s final set of
decisions
“Right to reside” test also introduced
FLAC is analysing the new provisions
• Will produce a factsheet on “right to reside”
• Potential challenges to the new legislation
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Conclusions
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Legislation was guillotined through the Dáil without
any debate although questioned in the Seanad.
CAO took sensible approach which would allow for
consistency and fairness
• Only individuals with a connection to the State would
qualify as they would still have to satisfy the various
factors of HRC
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Challenge of test cases is that the Government in
certain instances can amend legislation to get its
preferred result
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More Information
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See our website www.flac.ie
• Briefing Notes on the HRC and CAO’s decisions August
and December 2009
• Submission to Irish Human Rights Commission: FLAC
concerns on application of Habitual Residence
Requirement
• FLAC news
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