Joan Burton (Dublin West, Labour)

The habitual residence condition applies to social assistance payments and to child benefit. The determination of a person's habitual residence is made in accordance with five factors which are set out in legislation, as follows: the length and continuity of residence in the State or in any other particular country; the length and purpose of any absence from the State; the nature and pattern of the person's employment; the person's main centre of interest; and the future intentions of the person concerned as they appear from all the circumstances. These five factors have been derived from European Court of Justice case law.

EU rules prevent discrimination on nationality grounds in relation to social security, so it is not possible to exempt a particular category of Irish citizens, such as returning emigrants, from the habitual residence condition, either in general or for carer's allowance, without extending the same treatment to all EU nationals. However, the guidelines regarding determination of habitual residence address the issue of returning emigrants very specifically. The guidelines state: "A person who had previously been habitually resident in the State and who moved to live and work in another country and then resumes his or her long-term residence in the State may be regarded as being habitually resident immediately on his or her return to the State."

In determining the main centre of interest in the case of returning emigrants, deciding officers take account of the following - the purpose of the return, for example where a foreign residence permit has expired; the applicant's stated intentions as to why he or she is returning; verified arrangements which have been made in regard to returning on a long-term basis, for example, transfer of financial accounts and any other assets; termination of residence based entitlements in the other country; assistance from Safe Home or a similar programme to enable Irish emigrants to return permanently; length and continuity of the previous residence in the State; the record of employment or self employment in another State; and whether he or she has maintained links with the previous residence and can be regarded as resuming his or her previous residence rather than starting a new period of residence. This is generally sufficient to enable the deciding officer to determine whether their present circumstances in Ireland indicate a temporary visit or habitual residence.

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