Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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To ask the Minister for Social Protection if she will use the upcoming Employment, Social Policy, Health and Consumer Affairs Council meeting to try to make progress to abolish the habitual residence condition for carers returning from abroad to care for a family member. [42078/12]

Joan Burton (Dublin West, Labour)
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The Habitual Residence Condition (HRC) helps protect Ireland's social welfare system, while at the same time ensuring that those whose cases are appropriate to the system have access to it when they need it.

The determination of a person’s habitual residence is made in accordance with Section 246 of the Social Welfare Consolidation Act 2005, as amended. All applicants for carer’s allowance, regardless of nationality, must satisfy this condition. In determining whether or not a person is habitually resident here a deciding officer is required to consider all the circumstances of the particular case including;

- the length and continuity of residence in the State or in any other particular country;

- the length and purpose of any absence from the State;

- the nature and pattern of the person’s employment;

- the person’s main centre of interest, and

- 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.

HRC legislation is therefore set out in national legislation, not European legislation although our legislation must respect European law. In particular, EU legislation prohibits discrimination between nationals of EU Member States in the context of freedom of movement of workers and their access to social security or social assistance entitlements. Therefore, national legislation cannot provide advantages to non-resident Irish nationals on temporary visits here without extending the provisions to all EU nationals under the same conditions.

The Social Policy, Health and Consumer Affairs Council is meeting on the 4th October. Any proposals for legislative change coming before the Council would have already been subject to a process of negotiation and examination at various Council committees etc. There is no scope for raising HRC in this context.