Róisín Shortall (Dublin North West, Labour)
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Question 215: To ask the Minister for Social and Family Affairs further to Parliamentary Questions Nos. 84 and 91 on 23 February 2010 regarding the resuming residence guideline, the way a person who left Ireland prior to the introduction of the habitual residence condition in 2004 can prove they were habitually resident; the means by which a deciding officer distinguishes between resuming previous residence and starting a new period of residence. [10675/10]

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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Social welfare legislation specifically directs the deciding officer, in determining a question of habitual residence, 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 discuss each of these factors, suggest lines of enquiry relevant to each and also 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 guidelines do not attempt to be prescriptive as to how each individual factor affects the overall conclusion because the circumstances that apply to different cases will be very varied. Similarly the list of questions or elements provided in the guidelines to be considered in relation to the various factors are intended to be assistive and not exhaustive.

In the case of a person returning to Ireland after a period of residence abroad, the guidelines do not require the deciding officer to determine whether the person was habitually resident in Ireland or not before going abroad. As my previous answer indicated, the fact or duration of previous residence does not of itself determine whether a person's return is temporary or whether their intention is now to establish habitual residence in Ireland.

The information sought from an applicant who has returned to the State will include such elements as: how long they were previously resident here, why they left, how long they lived in various countries abroad and why they lived there,why they have returned, and whether they own property in Ireland or abroad. It is generally found that this information is sufficient to enable the deciding officer to determine whether their present circumstances in Ireland indicate a temporary visit or habitual residence.