Michael Ring (Mayo, Fine Gael)
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Question 677: To ask the Minister for Social and Family Affairs if the habitual residence guidelines are EU law now and has it been approved by the EU; if the Common Travel Area agreement between Ireland and England no longer stands in regard to habitual residency, following paragraph 5.4 of the revised habitual residence guidelines; and if he will make a statement on the matter. [14833/10]

Éamon Ó Cuív (Galway West, Fianna Fail)
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Social welfare legislation, with certain exceptions referred to below, lies within the area of competence of the individual Member States. National legislation in such matters therefore does not require approval of the EU and does not constitute EU law. The freedom of movement for workers, enshrined in the EU Treaties, results in EU Regulations governing social security for people who have moved from one EU Member State to another for the purpose of employment, and these Regulations have direct application in every Member State. National legislation and practice must also be compatible with the other EU Treaty provisions regarding (for example) equal treatment for all EU citizens. In addition, Member States must have regard to judgements of the European Court of Justice (ECJ) which interpret and clarify the application of the EU treaties and legislation.

My Department's guidelines on the habitual residence condition provide deciding officers with an understanding of how the national legislation and the relevant EU Regulations and ECJ judgements should be applied. Although published on the Department's website in accordance with the requirements of the Freedom of Information legislation, their sole purpose and standing is the provision of guidance to the Department's staff. The EU Commission, which is responsible for ensuring that Community law is correctly applied, is empowered to receive and investigate complaints by EU citizens in such matters, and, if it deems it appropriate following investigation, the Commission may refer such complaints to the ECJ. In December 2004 the Commission commenced an investigation of the operation of the habitual residence condition in Ireland following the receipt of such complaints. The investigation was closed in April 2006 when the Commission was satisfied that there was no conflict with EU law and that there were therefore no grounds for continuing infringement proceedings.

The social welfare provisions regarding habitual residence refer to the Common Travel Area only in the context of the rebuttable presumption clause in subsection (1) of section 246 of the Social Welfare Consolidation Act 2005. This states that ...."it shall be presumed, unless the contrary is shown, that a person is not habitually resident in the State at the date of the making of the application concerned unless the person has been present in the State or any other part of the Common Travel Area for a continuous period of 2 years ending on that date." There has been no change in this provision since its introduction in May 2004.

The Department's guidelines comment on this provision as follows: "The presumption in Section 246 (1) does not mean that an applicant is automatically considered to be habitually resident in the State because he or she has been here (or in another part of the Common Travel Area) for 2 years or more. The onus is always on applicants to provide sufficient evidence to support their claims for a social welfare payment. Also subsection (1) does not mean that an applicant can be automatically considered to be "not habitually resident" because he or she has not resided here for 2 years. In all cases it is imperative to base any such decision on the factors listed in subsection (4) ... as habitual residence cannot be determined by reference to a period of time alone ....."

The Guidelines also say in the context of considering the length and continuity of residence in the State or in any other particular country: "Bearing in mind the presumption clause in Section 246 (1)...., and the reciprocal arrangements with the UK concerning the Common Travel Area (CTA), for the purpose of this factor periods of residence within the CTA immediately prior to moving to live in Ireland should be treated the same as periods of residence in Ireland. This arrangement applies only to UK citizens and EEA nationals who had their centre of interest within the Common Travel Area during those periods."

The Deputy has referred in his question to paragraph 5.4 of these guidelines. This paragraph deals with the applicant's main centre of interest at the time of application, and emphasises that centre of interest "must be in the Republic of Ireland". This paragraph has been amended in minor ways for clarification since the first issue of the guidelines in 2004, but the substance has not been changed. For instance, in a revision in July 2008, the words "the Republic of" were inserted in the above phrase because it was suggested that the previous wording "must be in Ireland" could be misinterpreted as referring to the island of Ireland instead of the political entity of Ireland. The habitual residence condition guidelines, and in particular the part dealing with the centre of interest, have always been consistent with the legislative provision that a person must be habitually resident in the State in order to qualify for the relevant assistance payments or child benefit.