Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Question 189: To ask the Minister for Social Protection the steps he will take to ensure that Irish persons who are currently considering emigrating will not be frozen out of the social welfare system upon return. [4643/11]

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.

Subsection (4) 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 current guidelines regarding determination of habitual residence 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."

The information sought from an applicant who has returned to the State will therefore 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.