Bernard Durkan (Kildare North, Fine Gael)
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This is a sad issue. The person in question is a migrant worker who was working here until September 2005. Owing to personal circumstances she had to change employment and is now seeking further employment. She would be an ideal client for an employment scheme while in receipt of family income supplement at some stage in the future. This person has at least one child and is living on charity at present.

It is sad that someone who has worked here and paid contributions and whose circumstances change is no longer wanted by us and must go back home. I do not blame the Minister of State but it is a shame his colleague, the Minister with responsibility for the area, did not reply to this matter. I would be interested in hearing his reply. We all deal with countless cases of this nature, some of them heart-rending, involving people who are very vulnerable, in a difficult situation and in need of a helping hand. We pride ourselves on our charity and our economy but this case deserves the personal attention of the Minister.

The woman applied on 7 November for one-parent family allowance and, two months later, on 16 January, she received a reply to her application. The letter stated that it had been decided that she did not satisfy the condition of being habitually resident in the State because she had not resided in the State or part of the common travel area continuously for the past two years. She did for 18 months. The letter further stated she had no stable pattern of employment in the State. That is not true. She has been employed since she has been in the State. The letter continues that she has resided outside the State all her life. Given that this applies to many people currently in the State, I have serious doubts about the validity of this response. The letter further states that she has retained links abroad by way of retention of a financial account. If all those Irish people who went abroad and retained financial accounts here were treated in such a fashion, we would be very upset. I ask the Minister to consider this.

The letter further states that the future intentions of the woman in question with regard to the length of her stay here are short term. That is debatable. I know people can be inspired and the Minister of State, the Chair and I will have met many of them but I do not believe inspiration would be sufficient to make such a determination given that one does not know what will be a person's circumstances in future.

The letter then states that, from the evidence provided, there is nothing to substantiate that the woman in question is habitually resident in the State. Based on the statements made in this letter one would wonder whether the person truly exists. I would have asked that question if I had not had the woman introduced to me by another individual who was aware of her circumstances and pleaded with me to find out if anything could be done to secure a social welfare payment for her to tide her over the immediate problem until efforts could be made to secure a place for her on a community employment scheme.

Brian Lenihan Jnr (Dublin West, Fianna Fail)
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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.

Bernard Durkan (Kildare North, Fine Gael)
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Will this debate be acceptable as a basis for an appeal and oral hearing?

Brian Lenihan Jnr (Dublin West, Fianna Fail)
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Even under parliamentary privilege I cannot interfere with the workings of an independent statutory tribunal.

Bernard Durkan (Kildare North, Fine Gael)
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I assure the Minister of State that such provision exists. I would be satisfied if he were to accept this reply as the basis of an appeal to the Department.

Brian Lenihan Jnr (Dublin West, Fianna Fail)
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Does the Deputy wish me to treat this debate as the application for an appeal?

Bernard Durkan (Kildare North, Fine Gael)
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Yes.

Brian Lenihan Jnr (Dublin West, Fianna Fail)
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I have no problem with the parliamentary record being constituted as the basis for an appeal.

Bernard Durkan (Kildare North, Fine Gael)
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Will the Minister of State agree to my proposal?

Brian Lenihan Jnr (Dublin West, Fianna Fail)
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I have no objections to the parliamentary record being treated as the basis for an appeal.

Bernard Durkan (Kildare North, Fine Gael)
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A Minister who is going places should be expansive.