Joanna Tuffy (Dublin Mid West, Labour)
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Question 76: To ask the Minister for Social Protection his plans to update guidelines regarding the habitual residency rule to ensure a consistent approach by all deciding officers; his plans to amend the habitual residency rule to provide greater weight to the length of previous residency by the applicant. [28005/10]

Éamon Ó Cuív (Galway West, Fianna Fail)
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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.

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.

Regarding 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". In these circumstances, I have no plans to amend the rules to give greater weight to the length of previous residence.