Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

I move amendment No. 9:

In page 8, between lines 20 and 21, to insert the following:

“Provisions with respect to habitual residence

16. Section 246 of the Principal Act is amended—(a) in subsection (6)—

(i) by the substitution of the following paragraph for paragraph (b):

“(b) a person who has the right under the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) to enter and reside in the State or is deemed under those Regulations to be lawfully resident in the State;”,

(ii) by the substitution of the following paragraph for paragraph (c):

“(c) a person in relation to whom a refugee declaration within the meaning of the Act of 2015 is in force, or is deemed under that Act to be in force;”,

(iii) by the insertion of the following paragraph after paragraph (c):

“(ca) a person in relation to whom a subsidiary protection declaration within the meaning of the Act of 2015 is in force, or is deemed under that Act to be in force;”,

(iv) by the substitution of the following paragraph for paragraph (d):

“(d) a person who has been given, or is deemed under the Act of 2015 to have been given, a permission to enter and reside in the State under section 56 of that Act, where the permission concerned is in force;”,

(v) by the insertion of the following paragraph after paragraph (d):

“(da) a person who has been given, or is deemed under the Act of 2015 to have been given, a permission to reside in the State under section 57 of that Act, where the permission concerned is in force;”,

(vi) by the substitution of the following paragraph for paragraph (e):

“(e) a person who is a programme refugee within the meaning of section 59 of the Act of 2015 or is deemed to be a programme refugee under subsection (4) of that section;”,

(vii) by the substitution of the following paragraph for paragraph (f):

“(f) a person who has been given, or is deemed under the Act of 2015 to have been given, a permission to reside in the State under section 54 of that Act, where the permission concerned is in force;”,

(viii) in paragraph (h), by the substitution of “the Immigration Act 2004;” for “the Immigration Act 2004.”, and

(ix) by the insertion of the following paragraph after paragraph (h):

“(i) a person who has been given a permission to reside in the State under section 60(6) of the Act of 2015, where the permission concerned is in force.”,

(b) in subsection (7)—

(i) by the insertion of the following paragraph after paragraph (a):

“(aa) an applicant within the meaning of section 16 of the Act of 2015, or a person deemed to have made an application under that Act;”,

(ii) by the insertion of the following paragraph after paragraph (d):

“(da) a person who has made, or is deemed under the Act of 2015 to have made, an application under section 15 of that Act which has been refused by the Minister for Justice and Equality;”,

and

(iii) by the substitution of the following paragraph for paragraph (f):

“(f) a person in relation to whom a deportation order has been made, or has been deemed under section 51 of the Act of 2015 to have been made, under section 3(1) of the Immigration Act 1999.”,

(c) in subsection (8)—

(i) by the substitution of the following paragraph for paragraph (a):

“(a) is given, or deemed under the Act of 2015 to be given, a refugee declaration under that Act,”,

(ii) by the substitution of the following paragraph for paragraph (b):

“(b) is given, or deemed under the Act of 2015 to be given, a permission to enter and reside in the State under section 56 of that Act,”,

(iii) by the insertion of the following paragraph after paragraph (b):

“(ba) is given, or deemed under the Act of 2015 to be given, a permission to reside in the State under section 57 of that Act,”,

(iv) by the substitution of the following paragraph for paragraph (c):

“(c) is given, or deemed under the Act of 2015 to be given, a subsidiary protection declaration under that Act, or”,

(v) by the deletion of paragraph (d), and

(vi) by the substitution of “declaration or permission concerned was given or granted as the case may be and, in the case of a declaration or permission deemed to be given, for any period before the date on which the declaration or permission concerned was originally given.” for “declaration referred to in paragraph (a) was given or the permission referred to in paragraph (b), (c), (d) or (e), was granted.”,

and

(d) in subsection (10), by the insertion of the following definition:

“ ‘Act of 2015’ means the International Protection Act 2015;”.”.

The legislation governing the application of the habitual residence provisions is contained in section 246 of the Social Welfare Consolidation Act 2005. The amendments now being introduced arise from a recent change in secondary legislation and the pending commencement of certain sections of primary legislation enacted by the Department of Justice and Equality, both of which require that the habitual residence provisions of social welfare law be updated. I emphasise that there is no change to the habitual residence policy resulting from these amendments. They relate to the European Communities (Free Movement of Persons) Regulations 2015 and the International Protection Act 2015, both of which were introduced by the Tánaiste and Minister for Justice and Equality.

The European Communities (Free Movement of Persons) Regulations 2015 give further effect to the EU directive on the rights of EU citizens and their family members to move and reside freely within member states. The regulations came into force on 1 February 2016. They replaced the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 which are currently referenced in the habitual residence provisions of the Social Welfare Consolidation Act. The amendment is necessary to continue to provide that a person who is in the State in accordance with EU law is among those regarded as having a right to reside in the State for the habitual residence provisions.

The International Protection Act 2015 restates and modifies certain aspects of the law relating to the entry into and presence in the State of persons in need of international protection. Under the Act, certain legislation, including the Refugee Act 1996, the European Communities (Eligibility for Protection) Regulations 2006 and the European (Subsidiary Protection) Regulations 2013 are revoked. They are currently referenced in the habitual residence provisions of the Social Welfare Consolidation Act. The proposed amendments will replace these provisions with the relevant provisions of the new International Protection Act.

I emphasise that the amendments will continue to ensure that, once protection such as refugee status, is granted to a person, that person has a right to access social welfare supports in Ireland on the same basis as an Irish citizen. Such persons are entitled to apply for any social welfare payment appropriate to their circumstances, subject to satisfying the eligibility criteria of the particular scheme. The amendments provide that any person who has a refugee declaration or a subsidiary protection declaration under the International Protection Act will have a right to reside for social welfare purposes. They also include similar provisions for family members of such persons who have permission to reside in the State and persons who are in the State as programme refugees in accordance with the International Protection Act.

While the amendments in respect of the International Protection Act primarily update the current habitual residence provisions, they also provide that persons who have been granted temporary protection as part of a group of displaced persons under that Act, are regarded as having a right to reside under the habitual residence provisions. The amendments continue to provide that persons granted protection cannot be regarded as habitually resident in the State for any period before the date protection was granted to them. They maintain the policy that certain persons such as applicants for or those refused protection, or in respect of whom a deportation order has been made, cannot be considered to be habitually resident in the State for social welfare purposes. However, while applicants for international protection, mainly asylum seekers, cannot access the schemes to which the habitual residence provisions apply, the Department of Social Protection provides certain supports for them while they are awaiting a decision on their international protection applications. Such supports include the payment of the direct provision allowance and, as appropriate, exceptional needs payments. Such persons may also qualify for the back-to-school clothing and footwear allowance.

It is intended that the provisions relating to the European Communities (Free Movement of Persons) Regulations 2015 will take effect on the enactment of the Bill. The amendments arising from the International Protection Act 2015 will come into force on the commencement of the relevant provisions of that Act. This is expected to occur before the end of the year. To cut a long story short, the International Protection Act which has been passed by the Oireachtas, is replacing a number of pieces of legislation, including the old Refugee Act 1996, the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 and the European (Subsidiary Protection) Regulations 2013. We need to update social welfare law by taking them out and inserting the provisions of the new legislation in order that everything will be aligned.