David Norris (Independent)

It is an amendment of that Bill as initiated in the Dáil. The two terms are coterminous. I know what I am talking about in terms of language.

I want to address the Minister's point because there are a number of technical flaws in it. The case she referred to was the case to which I referred, namely, the Goncescu case. The chief appeals officer stated in all four cases that since the Goncescu case was decided a year before the habitual residence condition was introduced, it was unlikely that the Supreme Court was aware of any intention to introduce legislation to restrict access to social welfare payments on the basis of a habitual residence test. He said: "The facts of the matter are that the Goncescu case did not have a social welfare relevance and that the judgment predated the introduction of the habitual residence legislation." Whatever qualities the Supreme Court has, it does not possess the divine afflatus, prophetic powers, it is not the oracle of Delphi and it cannot make a decision based on something that happens one year later. That is rudimentary logic, I would have thought.

The chief appeals officer doubted the judgment's relevance to these cases and went on to say:

I do not believe there was any intention in framing the [HRC] legislation to exclude a particular category (such as asylum/protection seekers) from access to social welfare benefits. If there was any such intention the relevant legislative provisions would have reflected that intention and removed any doubt on the issue [ which they patently did not].

The advice from the Attorney General's office which was quoted by the Department said that time spent by applicants in the asylum process could not be considered as "residence" and could not count towards satisfying the habitual residence condition. However, the chief appeals officer noted that the Department had not quoted another portion of the advice which said that time spent in the State was only one of five factors. From what the Minister has said, one would almost assume that the only factor was time spent in the State but it is one of five. It is quite possible that, despite the subsequent Supreme Court decision, some at least of the other four might still be in play.