Denis Naughten (Roscommon-South Leitrim, Fine Gael)
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Question 62: To ask the Minister for Social and Family Affairs her plans to review the habitual residency condition rules or the existing legislation in view of the recent decisions of the appeals office regarding cases by asylum seekers; and if she will make a statement on the matter. [40838/09]

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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The requirement to be habitually resident in Ireland was introduced as a qualifying condition for certain social assistance schemes and child benefit with effect from 1 May 2004, in the context of the Government's decision to open the Irish labour market to workers from the new EU member states. The purpose of the habitual residence condition is to safeguard the social welfare system from abuse by restricting access for people who are not economically active and who have little or no established connection with Ireland.

A person who does not satisfy the habitual residence condition is not eligible for specified social welfare payments, regardless of citizenship, nationality, immigration status or any other factor. The social welfare schemes concerned are jobseeker's allowance, one parent family payment, disability allowance, carer's allowance, widow's and widower's non-contributory pension, guardian's non-contributory payment, non-contributory State pension, blind pension, supplementary welfare allowance except urgent or exceptional needs payments, and child benefit.

The five factors considered in determining habitual residence are: length and continuity of residence; length and purpose of any absence from the State; the nature and pattern of the person's employment; future intentions; and centre of interest such as family, home and connections. These factors, which were originally set out in European Court of Justice case law, were included in social welfare legislation by the Social Welfare and Pensions Act 2007.

The Department's guidelines regarding the application of the habitual residence condition to asylum seekers reflect a Supreme Court judgment which states, "persons who are allowed to enter the State for the purpose of making an application for asylum fall into a particular category and never enjoy the status of residents".

The Department is aware of the decisions of the chief appeals officer in a very small number of specific cases involving asylum seekers. Each decision of the chief appeals officer is made on the circumstances of the particular case and the decisions in cases related to certain asylum seekers do not automatically apply to all such cases. Since these decisions were made, there have been other cases where the appeals officer has upheld the decision to refuse a payment to an asylum seeker on the grounds of the habitual residence condition.

The appeals officer's decisions to award payment in a small number of cases are being examined within the Department to establish what, if any, implications they have for the operation of the habitual residence condition. A final decision has not yet been taken as to the appropriate response.

Denis Naughten (Roscommon-South Leitrim, Fine Gael)
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I thank the Minister for her reply. The sands have shifted on this issue as a result of an appeals officer's decision on four cases, and four more cases are to be decided upon. We have up to 20,000 people in the asylum and the leave to remain systems and if the other four decisions were to go the same way as the first four we could have an avalanche of applications being submitted to the Department through the appeals process. When does the Minister intend to make a decision on the legislation as it stands? It is being reviewed on foot of the previous decisions for the past month and every day that goes by could have implications for the potential cost of this.

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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I accept what the Deputy stated in regard to the implications of this. However, it is important to note that the appeals officer in making his decision dealt only with the legal arguments presented by both sides and did not set out a set of circumstances that should apply. Since his decisions on those cases, other decisions and refusals by appeals officers have been upheld. It does not follow that the decision he made is being applied to other cases. We are teasing through the legal implications and the knock-on effects on other cases. What was involved was child benefit but if the principle was established with regard to an asylum seeker then under certain circumstances with the habitual residence condition other schemes would be exposed also. This is why it is critical that we get the guidelines right.

Denis Naughten (Roscommon-South Leitrim, Fine Gael)
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Has the Minister had discussions with her colleague, the Minister for Justice, Equality and Law Reform? Is it not the case that if the Minister for Justice, Equality and Law Reform got his act together and processed these applications in an expeditious manner it would be very difficult for either asylum seekers or leave to remain applicants to meet the conditions as laid down in the habitual residency rules as they stand at present? Is it not case that the difficulty with the current interpretation of the habitual residency rules is the length of time that people have been left in legal limbo by the Department of Justice, Equality and Law Reform in the first instance and that is putting additional costs on the Minister's Department through the payments being made to people in direct provisions centres?

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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Officials in both Departments have been discussing this because of its import. There have been many cases on leave to remain and citizenship but a previous Supreme Court judgment on the rights of people making applications for asylum found they do not have a particular status and that it has been deemed that provision made for them in direct provision meets all of our obligations as a country under the Convention on the Rights of the Child. The guidelines set down by the Department a couple of years ago were in keeping with that. It was a rather unusual decision by the appeals officer to interpret something in a way the Supreme Court did not. We and the Department of Justice, Equality and Law Reform are examining the five conditions for habitual residence rather than just one.