Joan Burton (Dublin West, Labour)
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In regard to the comments made by FLAC, section 246 (1)(b) means a citizen of a state of the European Economic Area, EEA, who is a worker or self-employed person in this State is habitually resident in the State for the duration of their employment or while in self-employment, in accordance with Directive 2004/38/EC. Section 246 1(c) extends this provision to family members of workers or self-employed people who are EU or EEA citizens. Directive 2004/38/EC extends some worker status rights to EU and EEA citizens who have involuntarily become unemployed or are temporarily unable to work because of illness or accidental injury.
Certain conditions apply to the retention of worker status rights. For example, a person wishing to retain status must register as unemployed and fulfil any conditions attaching to that registration. The length of time worker or self-employed status is retained depends on the length of the preceding employment or fixed-term employment contract. A person who has become involuntarily unemployed within the first 12 months of employment or after completion of a fixed-term contract of less than one year and who has registered as unemployed retains worker status for no less than six months. Such a person may be entitled to claim a means-tested allowance from the State without having to satisfy the habitual residence condition, HRC. Currently when that person loses his or her worker status the Department has no way to review his or her habitual residence condition and this is the net point. Subsection 1(d) will give the Department the power to review the HRC of a person who has lost worker status to ensure that condition and any other relevant condition is met throughout the duration of any claim for a means-tested payment.
Section 246 (1)(e) extends those powers of review to family members whose HRC rights are derived from the worker status of the principal worker. It should be noted that the review or application of the habitual residence condition does not mean that someone who has lost worker status or rights derived therefrom will fail to satisfy the HRC as each case will be dealt with on its own merits using the five factors and any other circumstance that appears relevant. A person who has been in employment for a period longer than 12 months retains worker status for a longer, but not indefinite, period. The host member state is entitled to impose conditions other than those relating to habitual residence for entitlement to means-tested payments that conform with those imposed on nationals of that host member state. For example, we require people on jobseeker's allowance to make themselves available for work. This simply ensures that if a person is staying in a state, and qualifies, he or she will be subject to the same conditions as a national, long-term resident or citizen of the host member state.