Willie Penrose (Longford-Westmeath, Labour)
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Question 84: To ask the Minister for Social and Family Affairs her plans to update guidelines regarding the habitual residency rule to ensure a consistent approach by all deciding officers. [8907/10]

Ruairi Quinn (Dublin South East, Labour)
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Question 91: To ask the Minister for Social and Family Affairs her plans to amend the habitual residency rule to provide greater weight to the length of previous residency by the applicant. [8908/10]

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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I propose to take Questions Nos. 84 and 91 together.

The determination of a person's habitual residence is made in accordance with Section 246 of the Social Welfare Consolidation Act 2005, as amended. The most recent amendment was introduced by Section 15 of the Social Welfare and Pensions (No. 2) Act 2009 which provided that only persons who have a right to reside in Ireland can be regarded as being habitually resident in the State.

Following the passing of that Act, the operational guidelines of the Department were examined and all necessary changes on foot of this legislation were incorporated and updated on the Department's website on 8 February 2010. There are no further updates to the guidelines pending.

The Department's initial approach to ensuring consistency in regard to habitual residence was the establishment of a centralised decision-making area to examine this aspect in complex cases. This enabled a development of expertise and monitoring of the various situations and questions of interpretation as they arose. This small group of experienced deciding officers were then able to provide thorough and detailed training and ongoing support as the decision-making was devolved on a phased basis. In 2005 and 2006 the relevant scheme areas headquartered in Letterkenny, Longford and Sligo took over responsibility for the habitual residence aspect of their decisions. Since May 2009 the training and devolution has been rolled out to the Social Welfare Regions and Local Offices where decisions are made on entitlement to jobseeker's allowance and one-parent family payment claims. It is planned to complete this process within the next 2 to 3 months.

The Department's operational guidelines on habitual residence emphasise the need for consistency and any cases of apparent inconsistency which come to notice are examined with a view to ensuring that the guidelines, together with the ongoing support and training resources, adequately address any areas of uncertainty.

Deputy Quinn has asked about the weight given to previous residence in determining habitual residence. The legislation specifically directs the deciding officer to "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."

These five specified factors have been derived from European Court of Justice case law which examined the concept of habitual residence in the context of social welfare benefits. The Department's guidelines go on to point out that "No single factor is conclusive. The evidential weight to be attributed to each factor will depend on the circumstances of each case. It is necessary to weigh up all the information and balance the evidence for and against an applicant satisfying the habitual residence condition".

The fact of previous residence in the State, and the duration of that previous residence, cannot of itself determine whether a person's return to the State constitutes a resumption of habitual residence or will merely be a temporary return visit. Other factors, like the length and purpose of absence from Ireland and the future intentions of the applicant will also have a critical bearing on determining whether the person has maintained their centre of interest in the State, or has chosen to transfer that centre of interest back here, or whether their habitual residence is now in another country. The current guidelines address the issue of returning emigrants very specifically under the heading:

Resuming previous residence

A person who had previously been habitually resident in the State or within the Common Travel Area and who moved to live and work in another country and then resumes his/her permanent residence in the State may be regarded as being habitually resident immediately on his/her return to the State. In determining habitual residence in such cases the deciding officer should take account of ·

purpose of return e.g. expiry of foreign residence permit ·

the applicant's stated intentions

verified arrangements which have been made in regard to returning on a long-term basis e.g. transfer of financial accounts and any other assets

· length and continuity of the previous residence in the State

· the record of employment or self employment in another State and

· whether s/he has maintained links with the previous residence and can be regarded as resuming his/her previous residence rather than starting a new period of residence."

I am satisfied that this addresses the issue appropriately and that Irish nationals returning to live in Ireland on a permanent basis should experience no difficulty in demonstrating that they satisfy the requirements of the Habitual Residence Condition.