Joan Burton (Dublin West, Labour) | Oireachtas source

I do not propose to accept the amendment. The five factors are derived from the European Union legislation, Article 11 of Regulation 987/2009, the European Court of Justice jurisprudence, the Swaddling case, and the Knock case, among others, and they are listed in section 246(4) of the Social Welfare Consolidation Act 2005.
Guidelines on habitual residence have been published by my Department. They are freely available to everybody and are updated regularly to take account of developments nationally, at EU level and at the European Court of Justice. Full training is given on the use of the guidelines to all deciding officers and designated persons, with refresher training offered when the guidelines are updated.
If a person is dissatisfied with a decision given relating to habitual residence there are two avenues of appeal open to the person. He or she may seek a review of that decision, in other words, if information was omitted in regard to the application he or she can bring in the new information and ask for a review or he or she may appeal to the social welfare appeals office.
As the elements for the decision making process are already laid down in primary legislation, and there are adequate means of redress through the review and the appeal procedures, I remain of the view that it is unnecessary to provide secondary legislation as proposed by the amendment.
The Senator mentioned the FLAC submission. As he is probably aware, there has been a general welcome for the fact that the two year rule no longer applies but on the other hand, if people are claiming social welfare, we do not want to be paying it to people who have left the country for the periods concerned.
The Senator also mentioned Irish emigrants who may return home to Ireland. This is a very important point for all the Senators. The EU rules prevent discrimination on nationality grounds in regard to social security. As I believe the Senator is aware, it is not possible to exempt a particular category of Irish citizens such as returning emigrants from the habitual residence condition, HRC, without extending the same treatment to all EU nationals. However, the guidelines regarding determination of HRC specifically address the issue of returning emigrants. 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/her long-term residence in the State may be regarded as being habitually resident immediately on his/her return to the State." This was a much more vexed issue when I became Minister three and a half years ago and we worked to address the problems that were causing some difficulty. A number of Senators on both sides of the House raised specific cases with me at the time.
Arrangements were agreed with Safe Home Limited, a registered charity, to assist with the difficulty experienced by a minority of returning Irish emigrants in demonstrating their intention to live here permanently for the purposes of satisfying the HRC. To assist with this issue, Safe Home Ireland Limited has drawn up a check list of a range of documents that will help returning emigrants, whom we are happy to have return, show that they have returned to Ireland permanently.
Safe Home has also designed a declaration that will confirm where a customer is engaging with it as part of the repatriation process. It is intended that the declaration will be associated with any social assistance claim that a customer might make. This measure should help to expedite the decision making process in these cases as it can be accepted as proof that the customer has returned to reside in the State on a permanent basis.
If there are cases where the person still has residence outside the country and, for instance, he or she is simply returning home for a short period while retaining residence in another country, that is not somebody who is becoming habitually resident. However, we have used the arrangements with Safe Home Limited in particular to take account of older people coming back from, say, the United Kingdom, who might understandably be confused between the complexities of the two separate social security systems. To my knowledge, those arrangements are working very well unless Senator Cullinane is aware of cases to the contrary. It was an issue when I became Minister but as far as I am aware, we do not see anything like the volume of queries. Cases can arise from time to time where someone has not decided to do it permanently and, obviously, they have issues to address.