1. Habitual Residence Condition and social welfare appeals Kevin Baneham, BL 23 rd January 2013 The following presentation is for information only and should not be relied on as legal advice.

2. Kevin Baneham, BL2 Outline  Some introductory points  Social Welfare contributory payments  EEA migrant workers  Application of the Habitual Residence Condition  Social Welfare appeals  Other ways to challenge a decision

3. Tensions and sources  Persistent tension between EU principles of free movement and non-discrimination against member- states’ determination to have a link between social welfare claimants and the host country.  Good sources of information include those from FLAC and the ‘Person or Number’ report 2011 as well as the Department’s Operating Guidelines and the Social Welfare Appeals Office 2011 Annual Report.  Few definitive decisions; only summarised case studies.  The concept of ‘habitual residence’ is also used in family law, in particular with regard to children.  Efforts to import habitual residence to other entitlements, such as access to the housing list. Kevin Baneham, BL3

4. 4 ECHR v. EU  European Convention on Human Rights  Based in Strasbourg  Some high profile decisions (ABC, Norris and Airey)  Incorporated into Irish law (Donegan)  Article 6 – right to a fair hearing  Court of Justice of the European Union  Based in Luxembourg  Hears references from national courts and cases brought against member-states  Supremacy of EU law  Free movement of workers, coordination of social security and EU citizenship. Distinction between workers and non-active citizens.

5. Kevin Baneham, BL5 European Union and the EEA Austria Belgium Bulgaria Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden United Kingdom Croatia to join on the 1 st July 2013 European Economic Area Iceland Lichtenstein Norway Switzerland

6. Kevin Baneham, BL6 Overview of social welfare payments Contribution-based payments  Based on PRSI contributions either paid in Ireland or elsewhere  Not subject to HRC  Jobseeker’s Benefit; Carer’s Benefit; Contributory Old Age Pension. Assistance payments  Means-tested and subject to HRC  For example, Jobseeker’s Allowance; Carer’s Allowance; Disability Allowance.

7. Kevin Baneham, BL7 Other social welfare payments Family Benefits  Child Benefit  One Parent Family Payment  Guardian’s Payment  Maternity Benefit  Domiciliary Care Allowance*  Family benefits have a special place in EU law Supplementary Welfare Allowance  Subsistence payment  Exceptional needs payment and urgent needs payment not subject to HRC  Mechanism for paying for housing support  Integrated into Department of Social Protection  Mainly subject to HRC but has a special place in EU law

8. Kevin Baneham, BL8 Factors to consider when assessing a client’s case  Has the client an entitlement to a contributory payment in the light of contributions paid here or elsewhere?  Does the client have an entitlement to Family Benefits or SWA as an EEA migrant worker?  Building a case to satisfy the Habitual Residence Condition.

9. Kevin Baneham, BL9 Availing of contributory payments  EU law provides for the coordination of social security systems and the free movement of workers and citizens.  Habitual residence not applied to contributory payments.  Were any contributions paid in another EEA state? They can by aggregated to Irish contributions.  The client must have paid a certain number of PRSI contributions. The relevant tax year for 2013 is 2011.

10. Kevin Baneham, BL10 EEA migrant workers  EU law has sought to encourage the movement of migrant workers.  EEA migrant workers can be entitled to Family Benefits.  Minimum subsistence payment also available to EEA migrant workers.  An EEA migrant worker is exempt from HRC for these benefits (despite what section 192 of the 2005 Act says).

11. Kevin Baneham, BL11 Entitlement to Family Benefits  For the purposes of Family Benefits, any EEA citizen who is employed or self-employed (or in receipt for Jobseeker’s Benefit) does not have to satisfy HRC to receive a Family Benefit;  A non-EEA citizen who has worked in another EEA state and is employed or self-employed here can receive Family Benefits, provided they are legally at work and legally present here and subject to PRSI. Their dependents must reside in the EEA.  Other non-EEA nationals must pass the HRC.

12. Sidenote – Carer’s Allowance  Is it appropriate that Carer’s Allowance is not now defined as a Family Benefit?  The relevant EU Regulation states that a ‘Family Benefit’ means “all benefits in kind or in cash intended to meet family expenses, excluding advances of maintenance payments and special childbirth and adoption allowances mentioned in Annex I.”  The Department Operating Guidelines state the Domiciliary Care Allowance is a Family Benefit, while other Government documents suggest otherwise.  Is there something illogical about excluding Carer’s Allowance from the scope of family benefits in situations where, for example, Irish emigrants return to take care of their ailing Irish relatives? Kevin Baneham, BL12

13. EEA migrant workers & SWA  An EEA national who has been engaged in “genuine and effective” employment in Ireland should be regarded as a migrant worker and will be entitled to a subsistence payment, i.e. SWA.  Unlike the Family Benefits provisions, this is not available to people who are self-employed.  What is “genuine and effective”? Opposite of “marginal and ancillary” and ECJ has held that it includes low paid and where the work is only for few hours per week.  Poor guidance on this point in the Department’s operating guidelines, which asks whether the employment is “valid” and “genuine”. Insufficient reference to ECJ case law, except they are clear that the income earned does not have to be above the SWA rate. Kevin Baneham, BL13

14. SWA - link to the right of reside  An EEA migrant worker’s entitlement to SWA is limited by their right to reside in Ireland.  EU nationals who become involuntarily unemployed and have worked here for less than one year, continue to have a right to reside for another 6 months, provided they are registered as a jobseeker.  EU nationals who have worked here for over a year have a right to reside, provided that they are registered as a jobseeker.  Students and EU nationals who have lived here for over 5 years have an ongoing right to reside.  EU nationals have a right to enter and reside in the State for a 3-month period, provided they do not become an “unreasonable burden” on the State. Kevin Baneham, BL14

15. Applying the Habitual Residence Condition  The Habitual Residence Condition introduced in Ireland in 2004 in anticipation of the expansion of the EU;  Similar to an existing provision in UK social welfare law which was considered in a ECJ decision Robin Swaddling v. Adjudication Officer.  Initially cast as a “two-year” rule but later re- cast in line with the Swaddling decision. The right to reside provisions were inserted in 2009. Kevin Baneham, BL15

16. The Common Travel Area  The HRC was initially defined in 2004 as a rebuttable presumption that a person who has not resided in the CTA for the previous 2 years will not be habitually resident. This suggests particular regard to residence within the CTA.  In Douglas v. Minister for Social Protection, the High Court held that a person who moves to Ireland from elsewhere in the CTA has to prove habitual residence in Ireland.  This differs from the position in the UK where an Irish resident is automatically deemed as habitually resident when they move to the UK. Despite the CTA and its recognition in EU Treaties, there is a lack of reciprocity in how HRC is treated between Ireland and the UK. Kevin Baneham, BL16

17. Common Travel Area & HRC  Appeals Office case studies suggest that while a claimant will have to make a case out on the HRC criteria, it is appropriate to rely on existing family connections in Ireland and to look at future intentions, such as enrolling children in school. They also looked at evidence of cutting ties with the UK.  In the Department’s case studies, 5 out of 7 returning Irish nationals satisfied HRC. Of the two who failed, one was actively looking for work abroad and the other returning to missionary work outside Ireland. Kevin Baneham, BL17

18. Payments subject to HRC  Jobseeker's Allowance  Blind Pension  Carer's Allowance  Disability Allowance  State Pension (Non Contributory)  Widow(er)'s Non Contributory Pension  One Parent Family Payment  Child Benefit  Domiciliary Care Allowance  Guardian's Payment (Non Contributory)  Supplementary Welfare Allowance (other than once off exceptional and urgent needs payments) Kevin Baneham, BL18

19. The Habitual Residence Condition Following the Swaddling decision, a decision maker is obliged to examine 5 factors in assessing habitual residence: 1.Length and continuity of residence in Ireland or elsewhere 2.Length and purpose of any absence from Ireland 3.Nature and pattern of employment 4.Applicant’s main centre of interest 5.Future intentions of the applicant. According to the Operating Guidelines, “Although no single factor is conclusive, the focus must be on determining the person's main centre of interest, having regard to all of the relevant facts and circumstances of the individual. It may be helpful in practice to consider that the first three factors and the fifth factor help to determine where a person's main centre of interest (factor 4) is, and that the determination of that main centre of interest is in effect determining their place of habitual residence.” Kevin Baneham, BL19

20. Dealing with the HRC  Information submitted via the HRC1 form.  Whether or not somebody is HRC is a matter of fact, as opposed to a matter of law.  The ECJ has held that while a HRC test is justified, it must be capable of being justified on objective grounds and implemented proportionally.  Duty on Department to supply reasons to explaining a decision not to find a person HRC.  ‘Once and done’ – Once a claimant is deemed habitually resident, they should not be subjected to the test again. Kevin Baneham, BL20

21. Factor 1 – Length and continuity of residence  The Department will examine where a person has lived and the length of time they have been in Ireland.  The Operating Guidelines suggest that time spent in Ireland for the following should not amount to habitual residence: to study; for holidays; to visit friends; to do seasonal work; for medical treatment or posted by his/her employer abroad to work or in Ireland to seek employment (rather than to take up an actual job offer).  UK Social Security decisions hold that a person must be in the UK for an “appreciable” period and that this is 1 to 3 months.  It is notable that many of the Appeals Office case studies involve claimants who had been in Ireland for one or more years, yet who had to successfully challenge initial decisions to refuse their claims. Kevin Baneham, BL21

22. Factor 2 – length and purpose of any absence from Ireland  A person can either resume or re-acquire habitually residence on the day they arrive to the State, for example if they have strong existing links to the State; can demonstrate an intention to stay and to cut ties with the country they came from.  Using Factor 1, a person who is habitually resident here should not lose this if they go abroad to study; for holidays; to visit friends; to do seasonal work; for medical treatment or posted by his/her employer abroad to work or to seek employment (rather than to take up an actual job offer).  The argument is that, just as a Polish person who visits friends in Ireland does not gain HRC, a Polish person living here who visits family abroad should not lose their HRC status. The Appeals Office refers to a case where a Polish person went back to Poland for training and medical treatment but returned here to work. Kevin Baneham, BL22

23. Factor 3 – Nature and pattern of employment  The Operating Guidelines say that there is a presumption that a person working here for one month (or in self-employment for 6 months) will be habitually resident, while in employment.  The Department will look at the nature and pattern of work, e.g. the number of hours, the length of the contract and the person’s prospects.  Self-employment should be registered with Revenue and should be bona fide.  A claimant must be legally working in Ireland. This is a problem for many workers from Romania and Bulgaria who worked in Ireland prior to the 1 st January 2012 but did not have a work permit.  Appeals Office concern at excessive reliance on employment records: points to cases where Department rejected claims where a 16 year old who attended a special school had not worked or where a Polish national had only 22 PRSI contributions, where her employers had failed to regularise her employment. Kevin Baneham, BL23

24. Factor 5 – Future intentions of the applicant  The Department looks at the person’s stated intentions as well as evidence of the viability of long-term residence in Ireland, with or without reliance on public funds. They also look at initial intentions.  Emphasis on establishing ties in Ireland as well as re-registering a car in Ireland or transporting possessions to Ireland.  They also look at severing ties with other countries. Kevin Baneham, BL24

25. Factor 4 – Centre of interest  The claimant’s main centre of interest must be Ireland.  This is a combination of the other four factors as well as any other relevant factors, including evidence of ties to Ireland: activities, sport, relationships, employment.  This is the most important factor and your conclusions should outline why the person’s main centre of interest is Ireland.  Easier test for returned Irish emigrants to meet.  The Appeals Office has expressed concern about undue weight given to situations where a claimant has family living abroad. The Department’s Guidelines provide that this should not automatically mean that a person fails HRC, but this does not go far enough. The question is whether a person has a durable relationship with Ireland and surely working here while having family abroad is evidence of durability. Kevin Baneham, BL25

26. Right to reside  In 2009, the HRC test was made more difficult to pass as a claimant must also have a right to reside to be considered habitually resident.  Certain people automatically excluded from being habitually resident, e.g. people seeking asylum, subsidiary protection or leave to remain.  A non-EEA national who does not have a work permit or visa cannot meet HRC as they have no right to reside.  Some visas require that the applicant does not become a burden on the State. The Guidelines state that where a person applies for jobseeker’s allowance or SWA, the Department should consult INIS in relation to the effect this has on their residence.  There is an issue arising for people from Romania and Bulgaria who worked here while not having a work permit. This time does not count towards HRC. Kevin Baneham, BL26

27. Groups who automatically have a right to reside  Irish citizens  Programme refugees and people granted leave to remain, subsidiary protection and refugee status  In the case of refugees, their entitlement is backdated to the date they generally became entitled to the payment and not to when their status as refugee was recognised.  With conditions, EEA nationals and family members of EEA nationals (even where they are not EEA citizens). Kevin Baneham, BL27

28. Challenging social welfare decisions  Social Welfare appeals office  Availing of Freedom of Information  Office of the Ombudsman  Equality Tribunal  Judicial review and appeals to the High Court and the ECJ Kevin Baneham, BL28

29. Social welfare appeals  FLAC have published a recent, excellent guide to Social Welfare appeals.  Appeals system not fully independent of Department.  Appeals Office has resisted calls to publish decisions and while the case studies are useful, they are limited, potted summaries.  Can dispose of appeals either summarily or by way of oral hearing. Kevin Baneham, BL29

30. Managing your appeal  Pre-appeal option of requesting a review of the first instance decision by the Deciding Officer.  Once an appeal is lodged, comply with tight time limits.  Build your case against the original decision and make fuller submissions once the appeal is lodged.  Ask for an oral hearing, but in particular if the appeal relies on factual evidence to win.  A claimant can be represented at a hearing. Kevin Baneham, BL30

31. Using Freedom of Information  A claimant should obtain their full file from the Department by submitting a Freedom of Information request.  They can also use FOI to obtain a statement giving reasons for any act affecting them or findings of fact made in relation to any act. This provision puts an onus on the Department to give reasons for a decision and to outline findings of fact made regarding the applicant. This challenges perfunctory negative decisions.  Such a request should open “Pursuant to section 18 of the Freedom of Information Act, I ask you to provide reasons for X and outline each finding of fact which based this decision.” You could list each likely finding of fact to ask how they were reached. Kevin Baneham, BL31

32. Outcome of appeals  If the appeal is unsuccessful, it can be reviewed further by a Deciding Officer, be reviewed by another Appeals Officer or reviewed by the Chief Appeals Officer.  You should obtain a copy of the report of the Appeals Officer.  Further reviews are paper-based. Kevin Baneham, BL32

33. Office of the Ombudsman  This is a parallel avenue to challenge social welfare decisions, although there are also lengthy time delays.  Some 31% of cases referred to the Ombudsman relate to Department of Social Protection matters.  4 cases relating to HRC are mentioned on the Ombudsman website or used as case studies in her Annual Reports. Kevin Baneham, BL33

34. Equality Tribunal  A claimant can make a complaint under the Equal Status Acts against the Department where they believe they have been discriminated against on one of the nine grounds.  Section 14 of the Equal Status Act, however, provides that any action taken pursuant to an enactment or order of the court the Act is not prohibited as discriminatory.  A number of cases taken where people have claimed that the HRC test discriminated against them on grounds of nationality. While the Equality Tribunal criticised the administration of the Department, the HRC test was not held to be discriminatory or implemented in a discriminatory fashion.  Occasional successes against the Department, for example in relation to a centralised SWA service for members of the Travelling community. Kevin Baneham, BL34

35. Using the Courts  Option to appeal on a point of law for which legal aid might be available.  There is also the option of Judicial Review where the Court examines the legality of the decision, including how it was made.  There may also be option of referring the case to the European Court of Justice where there is a point of EU law at stake, including an allegation that the Department did not act proportionally or in line with objective considerations. Kevin Baneham, BL35

36. The end Thank you Kevin Baneham, BL36