Bernard Durkan (Kildare North, Fine Gael)
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Question 199: To ask the Minister for Social Protection if habitual residency clause criteria, as applied here to persons born in the UK, is similarly applied to Irish persons applying for social welfare payments in the UK; and if she will make a statement on the matter. [21854/11]

Joan Burton (Dublin West, Labour)
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2057In the UK the Habitual Residence Test (HRT) is a two stage test, the first part being a test of the right to reside in the UK or other part of the Common Travel Area (which includes the UK, the Channel Islands, the Isle of Man, and the Republic of Ireland) and the second part being a test of habitual residence in the place where right of residence is held. The first part of the test is applied to everyone who claims Income Support, Jobseeker's Allowance (Income Based), State Pension Credit, Housing Benefit and Council Tax Benefit.

The second part of the test (actual habitual residence) is only applied to people who have a right to reside and who have arrived or returned to live in the UK within 2 years of claiming these benefits. People who demonstrate a right to reside but who have been in the UK for more than 2 years are not subject to the second part of the test. Habitual residence is not defined in UK law and each case must be considered on its own merits. When applying the second part of the test decision makers take into account various factors including reasons for going to the UK, any previous work in the UK and intention to remain.

An Irish national (or passport holder) returning to the UK, or going to the UK for the first time has a right to reside in the Common Travel Area (CTA). They will need to satisfy the second step of the HRT only if they are going to the UK from outside the CTA and are not resuming earlier residence in the UK( i.e. they are taking up residence in the UK for the first time).

It is understood that the EU Commission is considering a challenge to the manner in which the UK condition is applied, with particular reference to the right to reside condition.