Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Question 309: To ask the Minister for Social Protection the specific rules governing the habitual residency conditions in respect of Irish citizens who are returning to Ireland to live or who have given up work in England to help care for a relative here. [29053/12]

Joan Burton (Dublin West, Labour)
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The habitual residence condition applies to social assistance payments and to Child Benefit. The determination of a person's habitual residence is made in accordance five factors which are set out in legislation, as follows:

(a) the length and continuity of residence in Ireland or in any other particular country;

(b) the length and purpose of any absence from Ireland;

(c) the nature and pattern of 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 factors have been derived from European Court of Justice case law.

EU rules prevent discrimination on Nationality grounds in relation to social security, so it is not possible to exempt a particular category of Irish citizens (such as returning emigrants) from the HRC (either in general or for carers allowance) without extending the same treatment to all EU Nationals. However, 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.

This is generally sufficient to enable the deciding officer to determine whether their present circumstances in Ireland indicate a temporary visit or habitual residence.

The Deputy should be aware that the number of applications for carer's allowance refused on grounds of habitual residency is small. For 2012 (to date), only 5 Irish Nationals have been refused Carers on HRC grounds. In 2011, 13,888 applications for carer's allowance were processed. Of these, 223 were refused on the basis of habitual residency, of which 42 were Irish nationals. This means that, in 2011, approximately 1.6% of all applications were refused on habitual residency grounds. 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.