Brian Lenihan Jnr (Dublin West, Fianna Fail)

As Deputy Durkan pointed out, I make this reply on behalf of the Minister for Social and Family Affairs, Deputy Brennan. The habitual residence condition was introduced on 1 May 2004. There is a requirement on all applicants for certain social assistance schemes, including one parent family payment and child benefit, to satisfy the habitual residence condition to access the payments. The objective of the condition is to restrict access to social assistance and child benefit in the case of persons newly arrived in Ireland, who have little or no connection to this country.

The Government introduced a habitual residence condition for access to social assistance payments with effect from 1 May 2004. All applicants, regardless of nationality, are required from that date to be habitually resident in the State to qualify for these payments. The term "habitually resident" is intended to convey a degree of permanence and to refer to a regular physical presence enduring for some time, usually but not always beginning at a date in the past and intended to continue for a period into the foreseeable future. It implies a close connection between the applicant and the country from which payment is claimed and relies heavily on that fact. The most important factors for habitual residence are the length, continuity and general nature of actual residence, rather than intention.

Any applicant, regardless of nationality, who has spent most or all of his or her life in Ireland should satisfy the habitual residency condition. Generally an applicant who has been present here for two years or more, works here and has a settled intention to remain in Ireland and make it his or her permanent home will also satisfy the habitual residence condition. An applicant who satisfies the habitual residence condition must also satisfy the other conditions of entitlement to receive the payment claimed.

Section 208A inserted by section 17 of Schedule 1 of the Social Welfare (Miscellaneous Provisions) Act 2004 provides that: "it shall be presumed, until the contrary is shown, that a person is not habitually resident in the State at the date of the making of the application concerned unless he has been present in the State or any other part of the Common Travel Area for a continuous period of 2 years ending on that date".

There is a presumption that an applicant for any of the relevant payments is not habitually resident in the State at the time of the making of the application until the contrary is shown by him or her. The onus is on the applicant to prove that he or she is habitually resident in the State. If it is proven that he or she has been present in Ireland for two years or more, an applicant does not attract the presumption of not being habitually resident. This does not mean an applicant is automatically considered to be habitually resident in the State because he or she has been in Ireland or another part of the common travel area for two years or more.

Depending on the facts, it may still be necessary to investigate further before deciding that a person is habitually resident. However, it is likely that most applicants who have been in Ireland for more than two years prior to the application for one of the specified payments will be habitually resident here in the absence of indications to the contrary. Persons who are not habitually resident at the time of the application for one of the specified payments may become habitually resident by the time they make a later claim for the same payment or another of the specified payments.

While the legislation requires a person to be continuously present in Ireland or elsewhere in the common travel area for two years, a short holiday of, say, two to three weeks is accepted as not breaching the requirement to be continuously present in Ireland or the common travel area. Residence is more a settled state than mere physical presence. A person must be present in Ireland at the time of making an application for the payments concerned.

The European Court of Justice has set down a number of factors to be considered when considering whether someone is habitually resident. The Deputy touched on these in his analysis of the form. The court determined that five factors are relevant in determining whether a person is habitually resident. It also stressed that the following list of factors is not exhaustive and should not be used as a means of scoring points for and against a person satisfying the condition. No single aspect is consistently likely to be the deciding factor but some may be more persuasive in certain circumstances than in others.

The five factors are: applicants' main centre of interest; the length and continuity of residence in a particular country; the length and purpose of absence from a country; the nature and pattern of employment in a country; and the future intention of applicant concerned as it appears from all the circumstances. The checklist of questions or factors which needs to be considered is not exhaustive and further inquiries may be needed. The circumstances of each case will dictate what information is needed and it is vital that all relevant factors are taken into account. The evidential weight to be attributed to each factor will depend on the circumstances of each case.

A deciding officer is appointed pursuant to statute or in the case of the supplementary welfare allowance officers of the health Service Executive who are duly authorised to determine entitlement decide whether a person satisfies the habitual residency condition. The officers have due regard to the five factors outlined and any additional information elicited by way of further inquiries. As provided for by law decisions can be appealed to the independent social welfare appeals office or, in the case of the supplementary welfare allowance, to the relevant HSE appeals officer and, if subsequently necessary, to the independent social welfare appeals office.

The person concerned made an application for one parent family payment in November 2005. Her case was referred to the habitual residence unit of the Department for a determination on her habitual residence in the State. A deciding officer has determined that the person concerned did not satisfy the habitual residence condition as she had not resided in the State or common travel area for the past two years or more, has had no stable pattern of employment in the State and does not intend to remain here in the long term. The person concerned was notified of this decision and the reasons for it on 16 January and informed of her right to have her case reviewed by the deciding officer and her right of appeal to the independent social welfare appeals office. According to that office an appeal has been registered in respect of the person concerned.

See this speech in context