Martin Cullen (Waterford, Fianna Fail)

I thank the Senator for raising this important issue. In general, child benefit may be paid in respect of every child under the age of 16 years who is ordinarily resident in the State. Payment can be extended to the 19th birthday if the child is in education or incapable of self-support. The benefit is paid to the qualified person with whom the child resides and the qualified person must satisfy the habitual residence condition.

The purpose of the habitual residence condition is to allow access to our social welfare schemes to people who are genuinely and lawfully making Ireland their habitual residence, while preventing unwarranted access by persons who have little or no connection with the State. It was introduced because Ireland at that time was one of only three member states of the EU to open its borders without restriction to nationals of the new EU states in May 2004. EU regulations provide that EEA nationals who are migrant workers, that is, who are employed or self-employed in this country or who are receiving Irish jobseeker's benefit since being in employment here, are entitled to payment of family benefits in respect of their families whether the families are resident with them in Ireland or in another member state. Under these regulations, the family members are treated as if they are resident in Ireland for the purpose of child benefit.

Prior to the introduction of the habitual residence condition in 2004, full examination was given by my Department to the question as to whether it was consistent with a number of international conventions to which Ireland was party, including the UN Convention on the Rights of the Child. Article 26 of the Convention on the Rights of the Child provides:

(1) The State parties shall recognise for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realisation of this right in accordance with their national law.

(2) The benefits should, where appropriate, be granted, taking into account the resources and circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child.

The convention allows the national legislation to prescribe the manner of provision of that benefit. The benefit does not have to be a cash payment and benefit in kind may equally satisfy the requirement. Therefore where direct provision is made, as in the case of persons in the asylum process, that provision meets the obligations of the convention and Ireland is not obliged to pay child benefit in addition to such provision. The outcome of this examination was that the habitual residence condition was not incompatible with the provisions of the convention.

Approximately 2,000 claims to child benefit for some 3,400 children have been refused since May 2004 as the applicant did not satisfy the habitual residence condition. Those who were refused were mainly persons whose claims to asylum were not yet finalised, who did not have a work permit or who had no attachment to the workforce in Ireland. In the same period, a total of more than 160,000 new claims for child benefit were received and awarded.

As part of the ongoing monitoring of the application of the habitual residence condition, my Department reviewed the outcome of related child benefit decisions during the period between January and the end of August 2007. A total of 28,542 decisions were made on new child benefit claims in this period. Of these, a total of 3,430, or 12%, required particular examination of the habitual residence condition. A total of 90% of these cases satisfied the condition and only 341 were refused because this condition was not satisfied. This shows that it continues to be the case that only slightly more than 1% of the total number of new child benefit claims fail to satisfy the habitual residence conditions.

The review also confirmed that those who are refused child benefit are mainly persons whose claim to asylum has not yet been decided, others who have not obtained a work permit, or persons who have had only a minimal or no attachment to the workforce since coming to Ireland. As I have already stated, those who do not satisfy the condition because they are in the asylum process have direct provision available to them, and in this manner the rights and welfare of the child is protected. If refugee status is granted to such persons, they are accepted as habitually resident and become entitled to child benefit in respect of their qualifying children.