Mary Hanafin (Dún Laoghaire, Fianna Fail)

As I have already given an extensive answer to Deputy Naughten's priority question regarding habitual residence, I will confine this reply to the Department's guidelines on this provision in social welfare legislation.

An internal review of the operational aspects of the habitual residence condition was completed by the Department of Social and Family Affairs in 2006 and copies of the report were laid before the Oireachtas in February 2007. One outcome of the review was an in-depth examination of the guidelines which were subsequently updated in July 2008. The revised guidelines reflect the inclusion in Irish social welfare legislation of the five factors for determining habitual residence which have been set down in judgments of the European Court of Justice. They also included expanded material on the application of EU legislation to certain categories of migrant workers and the circumstances in which that legislation applies to override the national provisions regarding habitual residence.

Additional information was also provided about the different types of immigration stamps issued by officers of the Minister for Justice, Equality and Law Reform and the implications for habitual residence in regard to certain groups of non-EEA nationals. Minor amendments to these guidelines have been made from time to time as the need has arisen. Before the Department makes any significant changes in its guidelines, careful consideration is required to ensure there will not be any unforeseen and unwarranted outcomes from the revised text. Retraining may also be required to ensure the revised guidelines are correctly understood.

The Department is aware of the discrepancy between the guidelines as they currently stand and the recent decisions of the chief appeals officer in a small number of claims from asylum seekers. In the circumstances of this particular issue, it was deemed best to complete the process of considering the appropriate response to the chief appeals officer's decisions first and to postpone any changes in the guidelines until this process is complete.

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