Róisín Shortall (Dublin North West, Labour)
Link to this: Individually | In context

Question 216: To ask the Minister for Social and Family Affairs his views on the request by an organisation (details supplied) made in a letter to him dated 6 March 2008 that he refer to the Attorney General the possibility of amending the criteria attached to the habitual residence condition in order that the applicant's centre of interest could be based, [i]inter alia[/i], on the place that the person was born and raised as opposed to their nationality; if he will make such a request of the Attorney General to establish if such an amendment could be consistent with EU requirements; and if he will make a statement on the matter. [10884/08]

Martin Cullen (Waterford, Fianna Fail)
Link to this: Individually | In context

There is no discrimination on grounds of nationality in social welfare legislation and to introduce such a provision would be contrary to the equality principles that Ireland has adopted in our own equality legislation, the Treaties of the European Community and the Charter of Fundamental Rights, and other international conventions.

The criteria that have been incorporated into the social welfare legislation to guide a deciding officer in determination of the habitual residence condition have been drawn from judgments of the European Court of Justice and are therefore soundly grounded in case-law. The proposal that an applicant's current "centre of interest" should take account of where he/she was historically "born and raised" does not accord with the interpretation of this matter by the European Court of Justice, which places the emphasis on the current location of important elements such as, inter alia, an applicant's home, employment and close family members. To introduce the place of birth and upbringing of the person as a factor to be considered in determining a person's centre of interest has no warrant in case-law.

On the contrary it would be found to be introducing indirect discrimination on the grounds of nationality as the vast majority of persons born in Ireland are Irish nationals. If applied similarly to persons born and raised outside Ireland, it would make it harder for such a person to show that their current centre of interest is now Ireland. The concept of indirect discrimination has been determined many times in national and international courts. Our own legislation describes it succinctly in Section 3(1) of the Equal Status Act 2000, (as amended by Section 48 of the Equality Act 2004): "where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."

The extension of social assistance and child benefit payments to persons who would not otherwise satisfy the habitual residence condition, on the basis that they were born and raised in Ireland, obviously falls within such a definition and cannot be justified by a legitimate aim as it is an obvious attempt to get around the equality legislation. I see no need to refer this question to the Attorney General. His opinion has been obtained in the context of relatively comparable situations where the issue of direct or indirect discrimination on grounds of nationality has arisen, and there is no reasonable doubt as to the advice which would be received in this case if I did so refer it.

It is alleged that Irish persons who have returned to live permanently in Ireland have been refused assistance on the grounds of the habitual residence condition. My Department has been unable to trace any such cases, and has offered to review any cases that are brought to its attention. I understand that so far this offer has not been taken up by the organisation to which the Deputy has referred.