Charles Flanagan (Laois-Offaly, Fine Gael)
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Question 79: To ask the Minister for Social and Family Affairs her plans to review the habitual residency condition rules in view of the recent decisions of the appeals office concerning cases by asylum seekers; and if she will make a statement on the matter. [40626/09]

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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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 May 2004, in the context of the Government's decision to open the Irish labour market to workers from the new EU Member States.

The purpose of the habitual residence condition is to safeguard the social welfare system from abuse by restricting access for people who are not economically active and who have little or no established connection with Ireland.

A person who does not satisfy the habitual residence condition is not eligible for specified social welfare payments, regardless of citizenship, nationality, immigration status or any other factor. The social welfare schemes concerned are Jobseeker's Allowance, One Parent Family Payment, Disability Allowance, Carer's Allowance, Widow/er's (Non Contributory) Pension, Guardian's Payment (Non Contributory), State Pension (Non Contributory), Blind Pension, Supplementary Welfare Allowance (except urgent or exceptional needs payments) and Child Benefit.

The five factors considered in determining habitual residence are: length and continuity of residence; length and purpose of any absence from the State; the nature and pattern of the person's employment; future intentions; and centre of interest (e.g. family, home, connections). These factors, which were originally set out in European Court of Justice case law, were included in social welfare legislation by the Social Welfare and Pensions Act 2007.

The Department's guidelines regarding the application of the habitual residence condition to asylum seekers reflect a Supreme Court judgment which states that "persons who are allowed to enter the State for the purpose of making an application for asylum fall into a particular category and never enjoy the status of residents".

The Department is aware of the decisions of the Chief Appeals Officer in a very small number of specific cases involving asylum seekers. Each decision of the Chief Appeals Officer is made in relation to the circumstances of the particular case and the decisions in cases related to certain asylum seekers do not automatically apply to all such cases.

Since these decisions were made, there have been other cases where the Appeals Officer has upheld the decision to refuse a payment to an asylum seeker on the grounds of the habitual residence condition.

The Appeals Officer's decisions to award payment in a small number of cases are being examined within the Department to establish what, if any, implications they have for the operation of the Habitual Residence Condition. A final decision has not yet been taken as to the appropriate response.