Joan Burton (Dublin West, Labour) | Oireachtas source

The freedom to move and reside freely within the territory of the member states of the EU is a fundamental right guaranteed under the EU treaties to all citizens. However, it is important that those availing of these freedoms are not intent on abusing the welfare systems of other counties and, specifically, the welfare system of this country. The right of residence afforded citizens from other EU countries is not unconditional and is governed by the terms of the EU residence directive. Under that directive, EU citizens from other countries have an unqualified right of residence in another member state for up to three months. There is no obligation on a member state to provide social assistance to the person or their family during that initial period, with some limited exceptions, or for longer in the case of jobseekers who have not worked here. Thereafter, the right of residence of people not in employment or self-employment depends on them having sufficient resources for themselves and their families so as not to become an unreasonable burden on the social assistance system of the State. Our social insurance system is based on the contributory principle of all our contributors paying in. It is largely confined to the contributors.

The judgment in the Dano case is very welcome as it clarifies the relationship between the equality provisions of EU regulations on the co-ordination of social security systems and rights under the residence directive of 2004. Ms Dano is an EU migrant who moved to Germany but was not in employment. She had argued that, under the EU social security regulations, she was entitled to benefits on the same basis as German citizens in a similar situation.

In its judgment, the court concluded that if it was the case that non-active persons who do not have a right of residence could claim social assistance under the same conditions as nationals of the host member state, this would undermine an objective of the residence directive, which is to prevent nationals of other member states from becoming an unreasonable burden on the social assistance system of the member state. In all member states, particularly in Ireland and the UK, the bedrock of social security law is that people in work contribute and the contributions give them entitlements to claim benefits and other payments.

Additional information not given on the floor of the House

Access to social assistance payments in Ireland is subject to the habitual residence condition which means that those in receipt of such payments are considered to have established their centre of interest in Ireland and to have significant contacts with this country. As well as satisfying this condition the person must also meet all other criteria for the particular scheme: for example, a person claiming jobseeker’s allowance must be available for and genuinely seeking full-time employment.

People claiming benefits to which they are not entitled brings the system of welfare coordination provided under EU regulations into disrepute. This not only impacts on migrants who are genuinely claiming benefits here, but also on Irish citizens in a similar position in other member states. The statistics which are available suggest that foreign nationals are not over represented in the numbers claiming benefits which broadly reflect the number of migrants in the overall population and the workforce.

The clarification of migrant rights found in the Dano case is an important development in this area and its implications are being considered by my Department to see if it can further assist our action to minimise abuses of our social welfare system.

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