Paschal Mooney (Fianna Fail)
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I welcome the Minister of State to the House and I thank the Cathaoirleach for selecting this matter.

This is a very recent development relating to the Dano case taken by a Romanian national against the German state which refused to pay her unemployment benefit. According to what I read, the person in question was refusing to seek work and felt that the state should still be obliged to pay her unemployment benefit. The European Court of Justice, the highest court in the European Union, has found in favour of Germany, which has implications. The original reaction to the European Court of Justice decision predictably enough came from the Tory party in Britain and the British Prime Minister, Mr. Cameron, MP, who welcomed it on the basis that it was common sense. It also raises the spectre of a continuing campaign to change the fundamental law of the European Union regarding the free movement of persons across the European Union, which UKIP in particular wants to see changed and which the British Conservative Party will press in the context of - as it puts it - reform of the European Union.

Given our close proximity to the United Kingdom and our growing closeness across a range of areas, it was inevitable that this question would come up. If the UK Government were to introduce legislation on foot of the European Court of Justice ruling, as I understand Germany and some other countries will do, it will have implications for immigration policy in general. It will also obviously have an impact on how social welfare in the United Kingdom is paid.

Given the close links between us and because of the close co-operation between the British and Irish social security systems, I was naturally anxious to get some clarity as to the response of the Government and in particular that of the Department of Social Protection. How will the Government respond? Will it involve legislation similar to the proposed UK model? In general, will it affect the payment of unemployment benefit or other social welfare payments to those from other parts of the European Union coming to this country to live?

On a related matter, does the Minister of State believe welfare tourism is an issue? The perception seems to be that it is an issue in the United Kingdom.

Kevin Humphreys (Dublin South East, Labour)
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The freedom to move and reside freely within the territory of the member states of the EU is a fundamental right guaranteed under the EU treaties to all citizens and this can bring great benefits to those who exercise those rights and to the countries to which they move. However, it is important that those availing of these freedoms do so for the right reasons and are not intent on abusing the welfare systems of other counties.

The right of residence afforded to citizens from other EU countries is not unconditional and is governed by the terms of the residence directive 2004/38. Under that directive, EU citizens from other countries have an unqualified right of residence for up to three months. With limited exceptions, during that initial period, there is no obligation on a member state to provide assistance to the person or their family. Thereafter, the right of residence of people who are not in employment or self-employment depends on them having sufficient resources for themselves and their family so as not to become an unreasonable burden on the social assistance system.

The judgment in the Dano case is very welcome as it clarifies the relationship between the equality provisions of the regulations on the co-ordination of social security systems and the right of residence under the residence directive. Ms Dano had argued that she was entitled to benefits on the basis the former. The court concluded that if non-active persons, who do not have a right of residence, could claim social assistance under the same conditions as nationals of the host member state, it would undermine an objective of the directive which is to prevent nationals of other member states from becoming an unreasonable burden on the social assistance system of the host member state.

Figures on the number of persons that the Senator refers to as "welfare tourists" claiming benefits here are not available though it is considered that the number involved is relatively small compared with the overall numbers claiming benefits. The majority of nationals from other member states who are claiming payments have worked here at some stage, paid taxes and PRSI, and are entitled to receive benefits when the need arises.

The Senator mentioned the United Kingdom and the measures it introduced to limit the number of people coming to reside there. As the Senator mentioned, UKIP was responding to those, but it has not been a major issue in Ireland.

While this matter needs to be monitored closely, we do not see any evidence of a real problem at present. However, the Senator is quite right to raise it at this stage as an early warning signal. He mentioned open borders. I can very much understand why the Senator raised this.

As the Senator may know, access to social assistance payments in Ireland is subject to a habitual residence condition, which means that those in receipt of such payments are considered to have established their centre of interest in Ireland and to have significant contacts with this country. As well as satisfying this condition, the person must also meet all other criteria for the particular scheme. For example, a person claiming jobseeker's allowance must be available for and genuinely seeking full-time employment.

The statistics which are available suggest that foreign nationals are not over-represented in the numbers claiming benefits, which broadly reflect the number of migrants in the overall population and the workforce. Apart from the waste of scarce resources, unjustified claiming of benefits brings the system of welfare co-ordination provided under EU regulations into disrepute. This not only has an impact on migrants who are genuinely claiming benefits here, but also on Irish citizens in a similar position in other member states. In this regard, the decision in the Dano case is an important milestone in clarifying EU law in this area and its implications are being considered by my Department to see if it can further assist our action to minimise the abuse of our social welfare system. The key point is that we have responsibility in all areas to ensure the integrity of the social welfare system is upheld and that we limit abuses where possible. I thank the Senator for raising this issue.

Paschal Mooney (Fianna Fail)
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I am very grateful to the Minister of State for clarifying the matter. The devil is in the detail. The detail is contained in the last paragraph and it includes the fact that the Department is considering the legal implications. It is a very serious matter for the Department to draft legislation that might further limit those who have entered the country who are genuinely seeking unemployment assistance or social welfare assistance and who are complying with the EU directive. I appreciate the flexibility that the Department affords through the habitual residence scheme in regard to Irish nationals who have decided to return here for a short period because of family and other considerations. This was of major concern to members of the Irish diaspora in the United Kingdom some years ago but the Minister for Social Protection, Deputy Joan Burton, was very sympathetic to their view. The Minister of State will be very aware of the importance of ensuring Irish nationals are not denied unnecessarily. There is generous sentiment within the Minister of State's Department when dealing with cases of this nature. While the habitual residence directive is slightly separate from the issue I raised, it obviously has an impact on what we are discussing. It is for this reason that I am putting these points on the record.

I would be grateful if, at this early stage, the Minister of State could give any indication as to whether Department might be considering seriously the drafting of legislation, especially in light of the promise in the United Kingdom to introduce legislation in respect of the Dano case.

Kevin Humphreys (Dublin South East, Labour)
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I pay tribute to the Senator for expressing an interest in people who had to emigrate over a long period. He has always fought their corner and has always brought the matter to the attention of the Government in a constructive manner. For that reason, I thank him for his contributions.

On the Dano case in particular, we certainly need to monitor the situation closely. We must examine the effect of the legislation in the United Kingdom. If there is evidence of a problem arising, the Department will react. The Senator can be assured of that. I thank him for bringing this matter to our attention.