1. The Habitual Residence Condition PILA Training 18 August 2010 FLAC – the Free Legal Advice Centres

2. 13/10/2015FLAC2 What is FLAC? A independent human rights organisation dedicated to the realisation of equal access to justice for all valuing the use of law as a way to achieve change Social welfare law is one of our priority areas Strategic casework Focussed campaigns

3. FLAC’s work in the Area Information Line Queries from general public Queries and referrals from other bodies including CICs, NGOs, advocates Advice Centres Queries from our volunteers Casework Limited but number of ongoing cases 13/10/2015FLAC3

4. 13/10/2015FLAC4 Habitual Residence Condition (HRC) Introduced on 1 May 2004 EU enlargement To prevent ‘welfare tourism’ British government introducing residency condition Applied to: All means tested allowances Child Benefit

5. Irish Legislation Section 246 of the Social Welfare Consolidation Act 2005 (Principal Act) Section 246 of Principal act amended by s. 30 of the Social Welfare and Pensions Act 2007 (Swaddling criteria put on statutory footing) ss. 186D and 161G of Social Welfare and Pensions Act 2008 (HRC applied to Domiciliary Care Allowance and Blind Allowance) S. 15 of the Social Welfare and Pensions (No. 2) Act 2009 (Certain categories of person excluded from satisfying HRC) 16 April 2010FLAC5

6. ‘Right to reside’ test Introduced in December 2009 HRC is or should be a question of fact Looks at connection to the State and centre of interest Department of Social Protection has treated this as a test of claimant’s legal status Right to reside is a question of law Is the individual entitled to reside or remain in the State? 13/10/2015FLAC6

7. Application Procedure Application made to Department of Social Protection, or in case of Supplementary Welfare Allowance to HSE Claimant may be asked to complete a HRC1 form in addition to the form for particular payment HRC decided on case-by-case basis 13/10/2015FLAC7

8. Five Swaddling Criteria Case C-90/97 Swaddling v. Adjudication Officer (a) length and continuity of residence in the State or in any other particular country; (b) length and purpose of any absence from the State; (c) nature and pattern of the person’s employment; (d) person’s main centre of interest; and (e) future intentions of the person concerned as they appear from all the circumstances 16 April 2010FLAC8

9. Length of Time Longer a person spends in one country then more likely it is that he or she will transfer his or her centre of interest and develop a connection No set time limit May become habitually resident after a short period of time – will depend on other factors Reason why person came to the State is important as may determine the length of time the claimant will stay 13/10/2015FLAC9

10. 13/10/2015FLAC10 Two-year rule Department used two-year rule when HRC first introduced but no longer applies despite wording in legislation European Code of Social Security does not permit states to set such time limits European Union was concerned it inhibited freedom of movement Introduced five factors in 2007 in place of two-year rule

11. Common Travel Area Time spent living in CTA should be taken into account Should be treated as a period of residence in the State But not does not automatically mean claimant is habitually resident Other four factors other than ‘length of time’ will be considered 13/10/2015FLAC11

12. Absence from the State Short period of absence from State should not be counted e.g. holiday Irish person in stable employment abroad May lose habitual residence while away unless maintain connection to the State Non-Irish national who moves to another country on permanent basis Will lose habitual residence 13/10/2015FLAC12

13. Resumption of Habitual Residence Person who leaves State for specific period of time e.g. 1 year work visa should resume habitual residence on return Look at whether he or she maintained a connection Reasons for return Does claimant intend to resettle in the State 13/10/2015FLAC13

14. Returning Irish Emigrants Depending on length of time may not be able to resume habitual residence, instead may be treated as beginning a new period of residence If returned on a long-term permanent basis then could be considered habitually resident immediately upon return Decision-maker will look at circumstances and consider Swaddling factors Swaddling decision referred to returning citizens 13/10/2015FLAC14

15. Returning Irish Emigrants - Carers Returning Irish emigrants acting as carers for elderly or infirm relatives Will not satisfy HRC if they maintain their centre of interest in another country i.e. Spouse or children, family home, job Issue raised at Joint Oireachtas Committee on Social and Family Affairs on 20 February 2008 Minister stated that situation could not be rectified without giving other EU nationals the right to come here with sick/elderly relatives and claim Carer’s Allowance 13/10/2015FLAC15

16. EU Nationals EU nationals must have a right of residence Entitled to remain for 3 months if self-sufficient, working or if he or she has not become a ‘burden on the State’ Five factors still to be assessed EU Citizens Directive Legally residing in State for five years or more has permanent right of residence Loses right if absent for two years or more 13/10/2015FLAC16

17. EU Migrant Workers and Job-seekers EU Migrant workers Do not have to satisfy HRC in order to receive Family Benefits in respect of dependents who are either habitually resident in Ireland or another EEA State A jobseeker who moves to Ireland from another EEA country in order to seek employment Subject to the HRC in the usual manner 13/10/2015FLAC17

18. More Information See our website www.flac.iewww.flac.ie 13/10/2015FLAC18