Róisín Shortall (Dublin North West, Labour)
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Question 121: To ask the Minister for Social and Family Affairs the action his Department has taken on each of the recommendations relating to his Department contained in his Department's internal report The Operation of the Habitual Residence Condition, July 2006. [29222/07]

Róisín Shortall (Dublin North West, Labour)
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Question 122: To ask the Minister for Social and Family Affairs the reason there is no arrangement whereby the interests of Irish citizens are safeguarded [i]vis-À-vis [/i]the operation of the habitual residence rule including reasons that may relate to EU law; the details of other EU jurisdictions that are applying this rule to their own citizens or disregarding the rule in relation to their own citizens; and the number of Irish citizens who have to date been refused social welfare payments under this rule with a breakdown by the number of children and the number of adults. [29224/07]

Martin Cullen (Waterford, Fianna Fail)
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I propose to take Questions Nos. 121 and 122 together.

The requirement to be habitually resident in Ireland was introduced as a qualifying condition for certain social assistance schemes and child benefit with effect from 1st of May 2004. The basis for the restriction is the applicant's habitual residence. The restriction is not based on citizenship, nationality, immigration status or any other factor. The question of what is a person's "habitual residence" is decided in accordance with European Court of Justice case law, which sets out the grounds for assessing individual claims.

These grounds are now specified in Section 30 of the Social Welfare and Pensions Act 2007 (see full details of legislative provisions in the note which follows). Decisions to the effect that applicants satisfy the Habitual Residence Condition are made in the majority of cases at claim acceptance stage by Deciding Officers at local level throughout the country. Complex cases that require detailed consideration are sent to a central section in Dublin or are examined in more detail in the scheme areas.

For the period from 1 May 2004 to 31 October 2007, the number of applications decided in respect of Irish citizens was 15,788, of which 1,629 (10%) were disallowed. Of the total disallowed, 13 were in respect of applications for Child Benefit. Records are not maintained in respect of the number of child dependants involved in claims for assistance which are not awarded. Each case received for a determination on the Habitual Residence Condition is dealt with in its own right and a decision is based on application of the legislation and guidelines to the particular individual circumstances of each case. Any applicant who disagrees with the decision of a Deciding Officer or a Community Welfare Officer has the right to appeal to the Social Welfare Appeals Office.

EU legislation prohibits discrimination between nationals of EU Member States in the context of freedom of movement of workers and their access to social security or social assistance entitlements. Therefore national legislation must not differentiate between Irish nationals and other EU nationals in the application of the habitual residence legislation. However, Irish nationals returning to live here on a permanent basis should experience no difficulty in meeting the requirements of the Habitual Residence Condition. Amongst the factors governing a decision in this matter are an assessment of the claimant's main centre of interest and future intentions as it appears from all the circumstances.

My Department does not have (and does not require to have for its business purposes) information on the application of similar rules in other EU Member States. Such information would not be easily obtained as it would require a detailed examination of

whether other legislation that uses the term "habitual residence" (e.g. UK) contains similar or different provisions

whether other Member States' legislation or administrative practice regarding the granting of (e.g.) residence permits and, in some States at least, the restricting of assistance payments to such residence permits results in similar effects.

the relevance of transitional arrangements for migration between the older and newer Member States where these still apply.

Nationals of the European Economic Area (EEA) who take up employment in the State are protected under the EU Regulations governing social security for migrant workers. Migrant workers from outside the EEA qualify for social insurance benefits in respect of the unexpired part of their work permits if they satisfy the normal qualifying conditions.

The Operation of the Habitual Residence Condition (HRC)

An Internal Review by the Department of Social and Family Affairs (DSFA)

Summary of Recommendations and latest position on same

Devolution

1.Devolution of decision-making should be completed as early as possible taking into account the needs for expanded guidelines and training. (Para 3.3)

Present Position

HRC decisions have been devolved to the relevant scheme owners in respect of the following schemes: Child Benefit, State Pension (Non-Contributory), Widow's Non-Contributory Pension, Blind Pension,Widow's or Widower's (Non-Contributory) Pension, Guardian's Payment (Non-Contributory), Carer's Allowance and Disability Allowance. HRC Decisions on complex cases involving claims for Jobseeker's Allowance and One Parent Family Payment are currently completed in HRC Central Unit in Dublin.

Guidelines

2.The guidelines should be expanded to deal with the application of HRC to certain groups, e.g. asylum seekers, refugees, work permit holders and spouses of workers. (See Para 3.2)

3.The application of the relevant guidelines should be reviewed in the light of the experience of Community Welfare Officers. (Para 2.5)

4.Further consideration should be given to the requirements of Articles 41 and 43 of the European Code of Social Security in relation to the Child Benefit entitlements of families who are in employment or self-employment and to incorporating any necessary clarification in the guidelines. (Para 5.2.1)

Present Position

Revised guidelines for claims decisions staff in both DSFA and the Health Services Executive (HSE) on the application of HRC to various categories of claimants — including those mentioned above — are currently nearing completion in consultation with management in the various scheme areas. In relation to No. 4, the relevant clarification was incorporated in the Child Benefit Guidelines in December 2006.

Procedures and Training

5.Procedures should be kept continually under review and improved wherever appropriate. (Para 4.7)

6.Comprehensive training should be provided to the Department's staff and CWOs on the basis of the expanded guidelines. (See Paras 3.6.7, 4.3 and 4.8)

7.A joint briefing should be devised for DSFA and Department of Enterprise, Trade and Employment staff in relation to HRC, the visa permit system and general immigration policy. (Para 3.6.7)

Present Position

On completion of the revised HRC guidelines, arrangements will be made to deliver training and/or briefings as appropriate to trainer staff within relevant organisations such as the Department of Enterprise, Trade and Employment and the Health Service Executive (HSE), in addition to staff within the Department of Social and Family Affairs (DSFA).

Liaison

8.Liaison should be strengthened between the Department of Social and Family Affairs and the Health Service Executive to maintain the level of consistency in decision making. (Para 3.6.2)

9.For statistical purposes, PPS Numbers should be used by the Reception Integration Agency, and data should be shared with this Department. (Para 2.12) It is also recommended that in all cases the customer's PPS Number should be included in the Garda National Immigration Bureau database. (Para 3.6.3)

10.A link should be formalised between the Department of Justice, Equality and Law Reform (D/JELR) and the Department of Social and Family Affairs, as the conditions of grant of residence in Irish Born Child cases are a cross-departmental issue. (Para 3.6.5)

11.To assist and ensure consistency in the decision making process, the current nature and status of the GNIB stamp should be clearly set out including specific reference to the fact that the person cannot become a burden on the State if applicable. (Para 4.6)

12.The basis of continued disallowance of cases, especially holders of a stamp 3 needs to be reviewed in consultation with D/JELR in the light of the proposed Bill. (Para 5.3.3)

Present Position

Liaison with the Health Service Executive in relation to HRC is effected through a dedicated area within DSFA dealing with policy matters in relation to the Supplementary Welfare Allowance Scheme. Liaison and consultation on the other matters in question is ongoing with officials in other relevant organisations (e.g. Department of Justice, Equality and Law Reform) in the task of revising the HRC guidelines and addressing the issues mentioned here. This inter-agency communication will continue to inform the manner in which these recommendations are addressed. It has been agreed that the revised decisions guidelines will contain full details of the conditions which attach to each of the GNIB "stamps" applicable to residence permits.

Customer service

13.Forms and information leaflets relating to the HRC should be made available in other languages. (Para 3.6.1)

14.EEA Nationals who have paid PRSI contributions while working in Ireland should be advised of their possible entitlement to social insurance benefits if they become involuntarily unemployed or sick, and also of their possible entitlement to Supplementary Welfare Allowance. Posters should be displayed in Social Welfare Local Offices to inform customers of these provisions. (Para 4.4.)

Present Position

The SW4 Guide to Social Welfare Services booklet which contains information on social insurance coverage and other welfare entitlements is currently available on-line on the department's website www.welfare.ie in a variety of languages including English, Arabic, Chinese, French, Polish, Portuguese, Romanian, Russian and Spanish. Similar arrangements are underway in regard to the department's information leaflet SW108 on the Habitual Residence Condition

Legislation

15.Consideration should be given to reflecting the criteria set down in the ECJ case law in the relevant provisions of the legislation in the interests of clarity and legal certainty. (Para 4.5)

Present Position

Section 246 of the Social Welfare Consolidation Act 2005, provides that:

"it shall be presumed, until the contrary is shown, that a person is not habitually resident in the State at the date of the making of the application concerned unless he has been present in the State or any other part of the Common Travel Area for a continuous period of 2 years ending on that date."

Section 30 of the Social Welfare and Pensions Act 2007 added the following to the above — and thereby has now included the ECJ criteria in regard to HRC into national legislation:

"(4) Notwithstanding the presumption in subsection (1), a deciding officer or the Executive, when determining whether a person is habitually resident in the State, shall take into consideration all the circumstances of the case including, in particular, the following:

(a)the length and continuity of residence in the State or in any other particular country;

(b)the length and purpose of any absence from the State;

(c)the nature and pattern of the person's employment;

(d)the person's main centre of interest, and

(e)the future intentions of the person concerned as they appear from all the circumstances."