Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Question 20: To ask the Minister for Social Protection the changes she will make to the operation of the habitual residency rule which is acting as a barrier for many returning emigrants, and family carers in particular, from accessing social welfare and the reason there was no mention of this issue in the Programme for Government. [6136/11]

Joan Burton (Dublin West, Labour)
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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.

Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Comhghairdeas don Aire as an post a fuair sí. Tá súil agam go n-éireoidh go maith linn ar an ghnó rí-thábhachtach seo. More than 650 Irish citizens were refused social welfare payments last year on the grounds of the habitual residency condition. That figure was only for part of the year. In the Labour Party election manifesto, promises were made that the habitual residency condition rule would be reformed to facilitate returning emigrants. When and how will those reforms be brought about? What will the Government do in the interim for those 650 people? Many of them were made destitute by the current rule. Some of those excluded were Irish citizens who never emigrated, as they were from Belfast, Derry and other parts of the Six Counties. Why is there no mention whatsoever of the habitual residency condition in the programme for Government?

The Crosscare Migrant Project has encountered cases of young emigrants who had left Ireland 18 months ago, but who were told on returning that they do not satisfy the conditions. More and more Irish people are emigrating, but does the Minister understand that by failing to alter the habitual residency condition for those Irish emigrants, she is telling them to get out and stay out?

Seán Barrett (Dún Laoghaire, Ceann Comhairle)
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There is one minute left for this question.

Joan Burton (Dublin West, Labour)
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When representing the Government in the UK for St. Patrick's Day, I had the opportunity to meet a large number of organisations dealing with Irish emigrants living there, including those who return home and those who intend to return home. All I can say is that fewer than 3% of the applications for carer's allowance are refused on the grounds of habitual residence. The Deputy referred to the number of refusals last year - it was 618 - but I was advised by the Department that a large percentage of those were people who did not have an Irish passport. Two hundred and six of the 618 making an application were international people.

There is an ongoing dialogue between the Department and emigrant organisations dealing with people in the UK. The guidelines are very specific. The main problem relates to this definition of centre of interest, and whether somebody is definitively coming back to Ireland.

To respond to the Deputy's point about people from the Belfast area, there are often queries about persons who may still be claiming entitlements, or have entitlements, under the system in the North. These matters generally can be addressed if the information is given very clearly, and if the centre of interest is defined. Most emigrants who return home really do not encounter much difficulty in respect of the habitual residence condition.