Mr. Joe O'Brien:

First, I must clarify that for the case sample we decided to deal with any migrant who had a social protection issue but it turned out that of the 35 cases identified, none were asylum seekers. They were generally people who had a right to access our social protection system.

All of us on this side of the room have been dealing with the habitual residence issue and the Deputy obviously has some experience of it too. One could certainly get the impression that the criteria are subjective but that is not the case. There is an element of discretion and it is this discretion which leaves issues somewhat open to personal interpretation.

When we presented the first report to the Department we made particular recommendations on the habitual residence condition. At the time we were pushing for guidelines on the use of discretion. In other jurisdictions guidance has been issued on the use of discretion. There is a particular way of using discretion so that determinations are not simply based on the opinion of an official. There are certain things that must be considered when one uses discretion. This is also the case with regard to the habitual residence condition. There are five factors that must be included in the mix but that has not been done properly. The condition has been in place for over ten years but the guidance on discretion has not been done properly.

The case sample, for what it is worth, would indicate that the application has improved somewhat in recent years. That said, it is a condition that has been around for more than ten years but it is still showing up in the case sample as problematic. Habitual residence is still a problem.