Seán Kyne (Galway West, Fine Gael)
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Question 294: To ask the Minister for Social Protection if her attention has been drawn to the fact that the habitual residence condition, which affects several social welfare payments and was introduced in 2004 to prevent welfare tourism, is causing hardship to persons, in particular Irish citizens who have returned home, in accessing social assistance and if the HRC can be examined to ensure fairness and consistency in decision-making across all offices and branches of the Department. [12810/12]

Joan Burton (Dublin West, Labour)
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The requirement to be habitually resident in Ireland was introduced as a qualifying condition for certain social assistance schemes and child benefit with effect from 1 May 2004. The effect of the condition is that a person whose habitual residence is elsewhere would not normally be entitled to social welfare assistance or child benefit payments on arrival in Ireland. Guidelines were introduced for Deciding Officers in the Department to assist in ascertaining entitlements of such claimants to social assistance. Each case received for a determination on the Habitual Residence Condition (HRC) is dealt with in its own right and a decision is based on application of the legislation and guidelines to the particular individual circumstances of each case.

A review of the habitual residence guidelines undertaken by a Departmental working group in 2010 and 2011 was completed in June 2011. An updated version of guidelines was published on the Department's website which can be found at http://www.welfare.ie/EN/OperationalGuidelines/Pages/habres.aspx. The purpose of this review was to make the guidelines clearer and more user-friendly for deciding officers and customers alike, and, improve consistency in decision making across the Department.

The guidelines regarding determination of habitual residence address the issue of returning emigrants very specifically. The Guidelines state: "A person who had previously been habitually resident in the State and who moved to live and work in another country and then resumes his/her long-term residence in the State may be regarded as being habitually resident immediately on his/her return to the State."

In determining the main centre of interest in the case of returning emigrants, deciding officers 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, termination of residence based entitlements in the other country, or assistance from Safe Home or a similar programme to enable Irish emigrants to return permanently

· 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 following examples are acceptable as proof of permanent return to Ireland:

· Documented evidence of transportation of personal possessions

· Proof of cessation of employment

· Proof of termination of lease on rented property or proof of sale of home

· Evidence of closure of financial accounts and transfer of funds

· Evidence of completion of studies abroad (where applicable)

· Copy of passport and expiration of visa at the time they returned

(In a case where a person says they were resident illegally in a country outside the EEA, the entry visa to that country, stamped on their passport, will clearly show the permitted duration of their stay in that country. For example, a person who went to the USA in 2007 and was granted an entry visa to remain there for 90 days but continued to live there until 2009, that person was resident in the USA illegally after the expiry of the 90 days. In a case like this, the fact that a person cannot return to that particular country, would mean that they may be likely to be habitually resident in Ireland).

This list is not exhaustive.

This is generally sufficient to enable the deciding officer to determine whether their present circumstances in Ireland indicate a temporary visit or habitual residence. Any applicant who disagrees with the decision on a case has the right to request a review of that decision and/or appeal to the independent Social Welfare Appeals Office.

There is no discrimination on grounds of nationality in social welfare legislation and to introduce such a provision would be contrary to the equality principles that Ireland has adopted in its equality legislation, the Treaties of the European Community, the Charter of Fundamental Rights, and other international conventions. I have no statistical evidence that there has been any significant increase in the number of disallowances on the grounds of not being Habitually Resident for claims made by returning Irish emigrants. An Irish national returning to live here on a permanent basis should experience no difficulty in demonstrating that they satisfy the requirements of the HRC.