Bernard Durkan (Kildare North, Fine Gael)
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Question 398: To ask the Minister for Social and Family Affairs when she expects to issue instructions to reverse the situation whereby Irish citizens are refused social welfare benefits under the habitual residency clause; if the habitual residency clause is in line with the Constitution in view of the fact that any Irish citizen who has been abroad more than once in the past four years will be deemed ineligible; if this is in line with convention; and if she will make a statement on the matter. [47604/08]

Bernard Durkan (Kildare North, Fine Gael)
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Question 415: To ask the Minister for Social and Family Affairs the instructions she has issued throughout her Department to persons dealing directly with members of the public, Irish nationals and non-Irish nationals, to render it difficult if not impossible to qualify for various social welfare or Health Service Executive payments or supports in some cases in violation of precedent and international human rights; if it is intended by the application of such guidelines to starve out specific categories; if cognisance is taken of the potential hardship caused in such cases; if her attention has been drawn to the fact that the habitual residency clause as currently applied is based on unsound legal grounds; if it is her intention to force people to emigrate by the use of such methods; the way this equates with the previously stated objective of the requirement of an extra 500,000 immigrants; and if she will make a statement on the matter. [47234/08]

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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I propose to take Questions Nos. 398 and 415 together.

The requirement to be habitually resident in Ireland was introduced as a qualifying condition for certain social welfare payments with effect from 1 May 2004, in the context of the Government's decision to open the Irish labour market to workers from the 10 new EU Member States without the transitional limitations which were imposed at that time by most of the other Member States.

It applies to claims for jobseeker's allowance, non-contributory State pension, blind pension, non-contributory widow's and widower's pensions and guardian's payment, one-parent family payment, carer's allowance, disability allowance, supplementary welfare allowance including rent supplement, and child benefit.

The effect of the condition is that a person whose habitual residence is elsewhere is not qualified for these payments on arrival in Ireland. Three out of every four claims that require detailed examination with regard to the habitual residence condition are found to satisfy that condition. Those who are refused are mainly people who have not been granted access to the labour market or people who have had no attachment, or insignificant attachment, to the work force since arrival in Ireland. There is therefore no conflict between this provision and the policy of attracting to Ireland qualified workers to fill jobs which cannot be filled from the current labour force.

No distinction is drawn in social welfare legislation on grounds of nationality. To introduce any such distinction would be in conflict with the provisions of the Equal Status Acts and with international conventions. Therefore Irish people are subject to the habitual residence condition in the same way as others when they claim one of the relevant payments.

It is not the case that a person "who has been abroad more than once in the past four years will be deemed ineligible". The factors taken into consideration in deciding whether the condition is satisfied include: length and continuity of residence in Ireland, length and purpose of any absence from Ireland, the nature and pattern of employment, the applicant's main centre of interest and the future intention of the applicant. These factors were originally set down in judgements of the European Court of Justice and were included for clarity in the Social Welfare Consolidation Act in 2007. Taking into account, particularly, the last two of these factors, Irish nationals returning to live here on a permanent basis should experience no difficulty in demonstrating that they satisfy the requirements of the Habitual Residence Condition.

The Department consulted with the Attorney General's Office in the course of drafting the habitual residence legislation and subsequently when issues were raised regarding compliance with the EU legislation and other international convention commitments. None of the issues raised with the Department have warranted a change in the legislation.

The habitual residence condition does not apply to exceptional or urgent needs payments under the Supplementary Welfare Allowance scheme. In addition to this, the EU regulations covering migrant workers who have been employed in Ireland since arrival here are carefully observed. Direct provision is also available for asylum seekers. In these ways, the application of this provision conforms fully to our EU and international obligations.

The guidelines for deciding officers with regard to the habitual residence condition are updated periodically and published on the Department's website at: http://www.welfare.ie/EN/ OperationalGuidelines/Pages/habres.aspx Similar guidelines have been circulated to community welfare officers of the Health Service Executive who administer the supplementary welfare schemes.