Habitual Residence Condition ‑ Guidelines for Deciding Officers on the determination of Habitual Residence

Please note: This document is a guide only.

Supplement to Habitual Residence Condition (HRC) Guidelines

2. The role of deciding officer/ determining officer in HRC & the steps to be followed

Reviews and Appeals

3. Circumstances giving exemption from the HRC for Family Benefits and SWA

4. Once and Done – has a previous decision been given?

5. Who does or does not have a right to reside?

Who has a right to reside?
Who does not have a right to reside?
Provisions regarding right of residence

6. Can the habitual residence condition be reviewed once it has been satisfied?

7. Who is habitually resident?

The Common Travel Area
Asylum Seekers
The Five Factors

7.1 - Length and Continuity of residence in Ireland or in any other particular country
7.2 - Length and purpose of any absence from Ireland
1. Returning migrants or Resuming previous residence
7.3 - Nature and pattern of Employment
1. Work arrangements
2. Conditions for recognising self-employment
3. Nationals of Romania and Bulgaria
7.4 - Applicant's main centre of interest
7.5 - Future intentions of applicant

APPENDIX 1 – Additional Information In Relation To Habitual Residence Status Of Specific Categories

(a) Certain Categories Of Non EEA Nationals
(b) Categories of people who will normally satisfy the HRC:
1. Deportees
(c) Categories where examination of 5 factors may be required:
(d) Jobseekers and others who do not enter the labour force

APPENDIX 2 – EC Regulations For Determining The Place Where A Person Habitually Resides

APPENDIX 3 - The Legislation, Including National Law

S.I. No. 656/2006 — European Communities (Free Movement of Persons) (No. 2) Regulations 2006
Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, The Council Of The European Communities,

APPENDIX 4 - Application Of EU Rules To Child Benefit, One Parent Family Payment, Guardian's (Non Contributory) Pension And Domiciliary Care Allowance

APPENDIX 5 - Application Of EU Rules To SWA

Meaning of Worker in EU law for the purposes of SWA

APPENDIX 6 - DETAILS OF:-

(a) EEA/EU nationals who have a right of residence
(b) Dependent family members who have a right to reside
(c) Family Members following death, departure from State, divorce or annulment
(d) EU Migrant Workers and Jobseekers

APPENDIX 7 - Endorsement Stamps And Work Visas/Permits

APPENDIX 8 – Employment Permit Information For Romanian And Bulgarian Nationals

APPENDIX 9 – Geographical Sectors/ Breakdown

1. Introduction

The purpose of this manual is to provide a comprehensive guide to aid understanding of the HRC (HRC). It will explain in detail the HRC together with providing a detailed guide as to how Deciding Officers of the Department of Social Protection and Determining Officers of the Health Service Executive can reach decisions.

The term "habitually resident" is not defined in Irish law, but it conveys a degree of permanence – meaning that a person has been here for some time, from a date in the past, and is intending to stay for a period into the foreseeable future. It implies a close association between the applicant and the country from which payment is claimed and relies heavily on fact.

Section 246 of the Social Welfare Consolidation Act 2005, as amended by Section 30 of the Social Welfare and Pensions Act 2007 and Section 15 of the Social Welfare and Pensions (No. 2) Act 2009 - sets out the legislation with regard to determining whether the habitual residence condition is satisfied. A detailed account of the legislation impacting on the habitual residence condition is set out in Appendix 3.

A person must be habitually resident in the State at the time of making the application for the following:

Blind Pension
Carer's Allowance
Child Benefit
Disability Allowance
Domiciliary Care Allowance
Guardian's Payment (Non Contributory)
Jobseeker's Allowance
One Parent Family Payment
State Pension (Non Contributory)
Supplementary Welfare Allowance (other than once off exceptional and urgent needs payments) and
Widow(er)'s Non Contributory Pension

An applicant who satisfies the HRC must, of course, also satisfy the other conditions of entitlement in order to receive the payment claimed. Therefore, the deciding officer or determining officer should bear in mind that habitual residence is only one condition and be mindful of the need to be proportionate in its aim, which is to ensure there is a link between the claimant and the State. In this respect it should be remembered that an unduly harsh application of the habitual residence condition could be unlawful.

The HRC does not extend to the provisions regarding an increase for qualified dependants (e.g. spouse or children), which means that the qualified dependants are not required to satisfy the habitual residence condition in their own right.

Exceptions

Applicants who are not habitually resident in Ireland are not entitled to the payments concerned. However, in certain circumstances, the provisions of EU law override national legislation as follows:

In determining claims for Child Benefit, One Parent Family Payment, Guardian's Payment (Non-Contributory) and Domiciliary Care Allowance for EU nationals who are migrant workers, a deciding officer or a determining officer must also have regard to EC Regulations 883/2004 and 987/2009. Under European law, Child Benefit, One Parent Family Payment, Guardian's Payment (Non-Contributory) and Domiciliary Care Allowance are defined as Family Benefits and are payable to a person who qualifies for EU migrant worker status for dependants who are either resident in Ireland or resident in another EEA State. In these cases the national law on habitual residence does not apply. The detail is set out in Section 3 of these guidelines and additional information is set out in Appendix 3.
Entitlement to Supplementary Welfare Allowance is determined by determining officers of the Health Service Executive. However, it is important for deciding officers to note that for the purposes of any claim to Supplementary Welfare Allowance an EEA national who is engaged in genuine and effective employment in Ireland is regarded as a migrant worker under EC law and does not need to satisfy the habitual residence condition. This means that EEA nationals who have been employed since arriving in Ireland may be entitled to Supplementary Welfare Allowance, even if they do not satisfy the habitual residence condition for Jobseeker's Allowance or one of the other payments subject to the condition.

For these reasons, these guidelines vary between Supplementary Welfare Allowance, Child Benefit, One Parent Family Payment and all of the other schemes to which the condition applies. The application of the condition for all schemes is being dealt with in detail in this document.

2. The role of deciding officer and determining officer (DO) in HRC

The question of whether a person satisfies the requirement to be habitually resident in the State is one for determination by a statutorily appointed deciding officer or in the case of Supplementary Welfare Allowance, a determining officer of the Health Service Executive who is duly authorised to determine entitlement.

In addition, national legislation provides that certain persons are not habitually resident. See Appendix 3, Section 246(7) of the Social Welfare Consolidation Act 2005 for details.

The DO's role in habitual residence is to make a fair and informed decision on each case having considered all the evidence in each individual case. The DO will rely on the evidence provided by the claimant and be guided by national and EU law and Guidelines when reaching a decision. The central focus is on determining the place where the person habitually resides having regard to the person's main centre of interest as established by the relevant facts and individual circumstances of the particular case and the supporting documentation.

Steps to be followed if a DO has to decide on habitual residence:

Check if the person belongs to one of the categories of persons who is not regarded as being habitually resident in the State (see Appendix 3, Section 246(7) of the Social Welfare Consolidation Act 2005).
Check if the person is exempt from the HRC
Check has a previous habitual residence decision been given or if the case is under appeal.
Consider whether the person has a right to reside.
Examine the 5 factors to determine habitual residence.

In determining whether a person is habitually resident in the State, all relevant evidence is taken into account including the period before the person entered the State, the period since entry into the State, and the future intentions of the applicant. All evidence presented, will be authenticated, as far as is possible, by the DO with reference to the records of the Department. From time to time, it may be necessary for an applicant to submit documentary evidence in support of information provided on the HRC. The DO will request the required information and the applicant should be given 28 days to submit it. In certain cases, it may be necessary to request Social Welfare Inspector to investigate further, in order to obtain full information. When the DO is satisfied that all necessary evidence is collated, s/he will, then make a decision on habitual residence based on the 5 main factors.

Reviews and Appeals

Where an applicant is not satisfied with the decision of a DO s/he has the right of review and/or the right of appeal. The applicant can submit additional evidence which s/he may consider relevant to her/his case and the decision will be reviewed. An applicant can appeal a decision directly to the independent Social Welfare Appeals Office if s/he so wishes or to the Health Service Executive in the case of a Supplementary Welfare Allowance appeal. If the applicant seeks a review of the deciding officer's decision or the determination of a duly authorised officer of the Health Service Executive in addition to or as an alternative to an appeal, the deciding officer or determining officer should consider any new or additional evidence provided and decide whether a revised decision/determination in favour of the applicant is warranted.

3. Circumstances giving exemption from the HRC for Family Benefits and Supplementary Welfare Allowance

Prior to deciding on a person's habitual residence, it should first be established whether any exemption from the HRC may apply.

Under EU law, in certain circumstances, entitlement is not subject to the national legislation on habitual residence. These circumstances are in relation to:

Family Benefits; and
Supplementary Welfare Allowance

1. Family Benefits

Under European law,

Child Benefit,
One Parent Family Payment,
Guardian's Payment (Non-Contributory),
Domiciliary Care Allowance

are defined as Family Benefits.

These are payable to a person who qualifies for EU migrant worker status for dependants who are either resident in Ireland or resident in another EEA State.

Therefore:

any EEA/EU citizen who is currently employed or self-employed here or who is in receipt of Jobseeker's Benefit does not have to satisfy the HRC in order to receive one of these Family Benefit payments.
any non EEA national, who has previously worked in another EEA State, and is currently employed or self-employed in the State, and
- is legally resident i.e. holds a current residence permit
- is lawfully employed in accordance with a work permit where so required and in accordance with the terms of his/her residence permit
- is subject to Irish PRSI
- whose dependants currently reside within Ireland OR within another EEA State

does not have to satisfy the HRC in order to receive one of the above payments which are classified as Family Benefits.

Note:
In the case of non-EEA nationals, the requirement of having worked in another EU State may be confirmed by way of employment or earnings records. The requirement that dependants continue to be resident within an EEA State may be proven by the applicant obtaining confirmation of children's attendance at local schools, spouse/civil partner's employment record or payment of local authority utility bills etc. in that State.
(see Appendix 4 for more details)

2. Supplementary Welfare Allowance

Entitlement to SWA is determined by the Health Service Executive. However, it is important for DO's to note that for the purposes of any claim to SWA an EEA national who is engaged in genuine and effective employment in Ireland is regarded as a migrant worker under EC law and does not need to satisfy the HRC. This means that EEA nationals who have been employed since arriving in Ireland may be entitled to SWA, even if they do not satisfy the HRC for Jobseeker's Allowance or one of the other payments subject to the condition.

This provision applies only to employed workers, not to self-employed persons.

(Details of those who are exempt from the habitual residence condition for SWA are contained in Appendix 5).

4. Once and Done – has a previous decision been given?

In line with departmental policy on consistency of decision making, if a person has been found to satisfy the HRC on a different scheme, (assuming the applicant is not exempted from HRC for the purpose of that scheme) then that decision will stand unless it is clear that it was an incorrect decision in the light of new evidence or that there has been a significant change of circumstances since it was given. Once and done therefore does not mean that only one decision is required – in fact for every claim made there must be a corresponding decision, but a previous decision on habitual residence should carry through to subsequent claims without the need to re-examine all the factors unless there was a significant change in circumstance since a new application was made.

Persons who are not habitually resident at the time of application for one of the specified payments may become habitually resident by the time they make a later claim for the same payment or another of the specified payments. Conversely, a person previously awarded payment may lose his/her habitual residence status in relation to subsequent claims, e.g. on return after a period of absence from the State - see paragraph 7.2 below. The DO should therefore establish whether the same facts continue to apply, and full account must be taken of the latest relevant evidence and information supporting the facts.

Where a DO proposes to make a decision on habitual residence which is different to a previous habitual residence decision in respect of the same person, both deciding officers and also determining officers of the Health Service Executive, must consult with the person who made that determination, so as to ensure a consistent interpretation of the applicant's habitual residence status. If no agreement can be reached, the matter should be forwarded to the relevant supervisors and ultimately to the Decisions Advisory Office in the event of no agreement at this level.

Note:
The DO should also be alert to the situations where EU Regulations exempt a person from satisfying theHRC for the particular payment claimed, for instance, in regard to Family Benefits or SWA for EU migrant workers. Normally, the previous decision in these cases will be flagged as an EU case on the Department's records.

5. Who does or does not have a right to reside?

Before a decision can be made regarding a person's habitual residence, it must first be established whether the person has a legal right to reside in the State. Subsections (5) to (10) of Section 246 were inserted in the Social Welfare Consolidation Act 2005 in December 2009 to put beyond doubt that residence, for the purpose of the habitual residence condition, means residence in accordance with a legal right to reside, not mere presence only. Subsection (5) explicitly states that a person who does not have a right to reside in the State cannot be habitually resident for social welfare purposes.

The 5 factors need not be considered until the right to reside has been established.

Who has a right to reside?

Subsection (6) sets out a list of persons who shall be taken as having a right to reside. These include -

1. Irish nationals have a right of residence in Ireland.

2. Although not expressly referred to in subsection (6), UK and EU nationals coming in from the Common Travel Area (CTA) also have a right to reside here under the CTA agreement.

3. EEA nationals who are employed or self employed in Ireland have a right to reside. Also –

EEA nationals who have been employed here for over a year and are now unemployed, may continue to reside provided they are registered as jobseekers with this Department and with FÁS,
EEA nationals who have been employed here for less than a year and are now unemployed, may remain for a further 6 months provided they are registered as jobseekers with this Department and with FÁS,
EEA nationals who have sufficient resources to support themselves, their spouse/civil partner and any accompanying dependents and have comprehensive sickness insurance,
EEA nationals may reside here as visitors or jobseekers for up to 3 months provided that they do not become a burden on the social welfare system of the State during that period.

Full details on the provisions which apply for EEA/EU nationals and family members, and circumstances in which an EEA or EU national may lose their right to reside are set out in Appendix 6.

4. Non-EEA nationals

Non EEA nationals must have a residency or work permit to legally reside and work in the State. Permission to reside will be evidenced by an appropriate immigration stamp in the person's passport and a Certificate of Registration issued by the Garda National Immigration Bureau (GNIB), i.e. a GNIB card). Note - such nationals may be present in the State as a visitor for a maximum of 3 months, but cannot be considered resident during that period. The grounds (i.e. stamp/visa) on which a non EEA national is permitted to reside/work in the State are listed in Appendix 7.

5. Asylum seekers who have been granted permission to remain.

Note: see section 7 of these guidelines re: determining whether asylum seekers who have been granted permission to remain are habitually resident.

Who does not have a right to reside?

6. Asylum seekers who have not been granted permission to remain are not legally resident. Section 246 (7) of the Social Welfare Consolidation Act 2005, (Appendix 3) contains the list of persons who shall not be regarded as habitually resident. It includes those who are in any stage of the asylum process, or similar forms of request for permission to remain but in respect of whom such permission has not yet been granted.

7. EEA nationals who do not have a right to reside here are:

those who do not have sufficient means to support themselves, their spouse/civil partner and any dependents, AND
are not students (with comprehensive sickness insurance) enrolled in an educational establishment, AND
who
- have not been employed or self-employed here, or
- have been employed here for more than a year AND are now unemployed but have not registered with this Department or FAS as a jobseeker, or
- have been employed here for less than a year and have been unemployed for more than 6 consecutive months, or who have not registered with this Department or FÁS as a jobseeker

8. Non EEA nationals who do not have a right to reside here are:

Persons who have entered the country illegally i.e. without the necessary visa or permission to enter the State,
persons who entered the country on a visitor or student visa and have overstayed the period allowed by that visa, or no longer meet the conditions of that visa (e.g. are no longer studying);
persons who initially held an employment/residence permit but who have failed to renew the permit(s) in question.

Persons who at the date of application for a payment do not have a current residence or employment permit should be advised to provide documentary evidence from the Department of Justice and Equality clearly stating their current status as regards their right to reside in the State.

Provisions regarding right of residence

Appendix 3 contains details of legislation which refers to the right to reside – Section 246, subsections (5) to (8).

Appendix 6 contains further details on the right of EEA/EU nationals and their family members who have a right to reside.

Appendix 7 contains details of the grounds (i.e. stamp/visa) on which a non-EEA national is allowed to reside in the State. Non-EEA nationals, living in the State must have a residency and work permit to reside and work in the State. They are required to provide proof of grounds to reside in the State i.e. present their GNIB card at the Social Welfare Local Office at time of claim.

Sufficient resources and burden on the State

The concept of having sufficient resources so as not to become a burden on the State derives from Directive 2004/38/EC, which has been transposed into Irish law by S.I 656/2006 (See Appendix 3).

The main significance of having sufficient resources for the purposes of social welfare payments arises in the context of the right of EEA nationals and their family members to reside in the State for a period of longer than 3 months.

In the case of an EEA national, Regulation 656/2006 provides that an EEA national may reside in the State for a period of longer than 3 months if s/he:

is employed or self-employed;
has sufficient resources and sickness insurance to support himself/herself, his/her spouse and any dependants;
is enrolled at an establishment for the principal purpose of following a course of study or vocational training; or
is a family member of an EEA national accompanying or joining the EEA national who satisfies one of more of the above 3 criteria.

Regulation 656/2006 also provides that a person shall be regarded as not having sufficient resources to support him/herself or his/her dependants where he/she would qualify for assistance under Part 3 of the Social Welfare Consolidation Act 2005 if a claim were made by or on behalf of the person.

For more details of family members of EEA nationals please see Appendix 6.

6. Can the habitual residence condition be reviewed once it has been satisfied?

Social Welfare legislation provides that the HRC is applied at the date of claim. For example, Section 141 (9) provides: "A person shall not be entitled to Jobseeker's Allowance under this section unless he or she is habitually resident in the State at the date of the making of the application for Jobseeker's Allowance". The Act does not provide that it is a continuing condition of entitlement for any of the schemes for which the condition applies. The right to reside condition is set out in Section 246 (5) of the Act. That section provides notwithstanding subsections (1) to (4) and subject to subsection (9), "A person who does not have a right to reside in the State shall not, for the purposes of this Act, be regarded as being habitually resident in the State". Therefore this right to reside condition is clearly linked to the HRC which may only be applied at the date of application.

In summary, once the HRC has been satisfied, it should not be reviewed in respect of that claim.

SWA Claims

In the case of any claim to SWA from an EEA national who is regarded as a migrant worker, the HRC is not applied. Where that person loses their worker status, there is no provision under the Act to apply the HRC.

As such, former workers who may not satisfy the HRC may continue to be entitled to a payment under SWA. However, such persons while not currently satisfying the HRC may at some stage in the future satisfy the condition. Bearing this in mind and the fact that it is a condition for receipt of SWA under Section 195(c) that the person in question makes an application for any statutory or other benefits or assistance to which the person may be entitled, any such cases should be kept under consideration for any possible alternative entitlements.

Family Benefits

There is no provision under Irish Social Welfare legislation to review the HRC for family benefits once the person loses migrant worker status. However, clearly the person must continue to be resident in the State.

7. Who is habitually resident?

The question of whether a person is habitually resident (not just legally resident) must be determined by the application of the factors listed in Section 246 (4). Section 246 (9) emphasises that the right of residence alone does not establish that a person is habitually resident.

The following paragraphs detail additional information to be noted when deciding the HRC for certain categories of persons.

The Common Travel Area

Section 246(1) of the Social Welfare Consolidation Act 2005 provides that:

"For the purpose of each provision of this Act specified in subsection (3), it shall be presumed, until the contrary is shown, that a person is not habitually resident in the State at the date of the making of the application concerned unless the person has been present in the State or any other part of the Common Travel Area for a continuous period of 2 years ending on that date."

A person does not necessarily satisfy the HRC merely because they have lived here for 2 years immediately preceding a claim. Also, a person is not necessarily disallowed on habitual residence grounds because they have NOT lived here for 2 years immediately preceding a claim.

The HRC is a complex condition and the length and continuity of residence in the State immediately prior to a claim is only ONE aspect of the condition.

It is important to note that this does not mean that such persons are presumed to be habitually resident. On the contrary, such applicants' status must still be examined by reference to the five factors to determine whether the person has actually transferred their habitual residence to this State.

Asylum Seekers

An asylum seeker is a person who has applied to the Minister for Justice and Equality for recognition as a refugee in accordance with the Refugee Act 1996, and whose application has not yet been determined. Section 246(7) of the Social Welfare Consolidation Act 2005 provides that such a person shall not be regarded as habitually resident. Subsection (7) also excludes those whose application has been refused and those who are subject to a deportation order.

Where permission to remain has been granted, habitual residence can only be granted with effect from the date permission to remain is given. Section 246 (8) is quite clear that a person cannot be regarded as being habitually resident in any period which pre-dates the grant of permission to remain.

Also, where permission to remain has been granted, the case should be examined by reference to the factors set out in Section 246 (4) to establish if the person is habitually resident. Section 246 (9) emphasises that the right of residence alone does not establish that a person is habitually resident. In some cases the permission to remain is expressed as granted for a certain period of time (e.g. 3 years). Such cases should also be examined by reference to the five factors.

Examples of categories of cases where the five factors are usually found to be met:

International workers
Deportees
Irish nationals or long-term Irish residents who have spent only brief periods abroad
Refugees
Programme Refugees
Subsidiary protection
Family reunification

Appendix 1 sets out in more detail the various categories:

those who must have either an employment permit or a residence permit
anywhere the five factors are usually found to be met
categories where examination of the five factors may be required.

The Five Factors

Section 246 (4) of the Social Welfare Consolidation Act 2005, incorporates into Irish law 5 factors that have been set down in judgements given by the European Court of Justice (ECJ) as relevant to determining whether a person is habitually resident. The following are the five factors:

Factor 1 - Length and continuity of residence in Ireland or in any other particular country

Factor 2 - Length and purpose of any absence from Ireland

Factor 3 - Nature and pattern of employment

Factor 4 - Applicant's main centre of interest

Factor 5 - Future intention of applicant concerned as they appear from all the circumstances.

It should be noted, and as emphasised by the ECJ, these factors are not exhaustive. Therefore, the list should not be used as a means of scoring points for and against a person satisfying the condition.

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 The evidential weight to be attributed to each factor will depend on the circumstances of each case. It is necessary to weigh up all the information and balance the evidence for and against an applicant satisfying the habitual residence condition and reach a decision based on the law, case law and available guidance.

A correct decision is reliant on the most comprehensive information being given by the applicant. The HRC1 (the habitual residence questionnaire) should be completed in full by the applicant. It may be necessary to ask the applicant to provide further information. The circumstances of each case will dictate what information is needed. It is vital that all relevant factors are taken into account. Evidence presented must be evaluated and authenticated in all cases.

The following sections deal with each in the order they appear in the legislation:

7.1 - Length and Continuity of residence in Ireland or in any other particular country

Habitual residence cannot be determined simply by reference to a specific period of residence in a country. The length and continuity of a person's residence must be considered along with the other factors. For example, an applicant who has a home or close family in another country may retain their main centre of interest in that country (see Paragraph 7.4).

However, the longer persons reside continuously in a country, the more likely they are to develop their main centre of interest in the host country and to lose the ties with their previous country of residence.

Where a person has been in Ireland only for a short period, consider why s/he has come to Ireland. For example, if a person comes for any of the following reasons s/he is unlikely to be habitually resident in the State:

to study;
for holidays;
to visit friends;
to do seasonal work;
for medical treatment;
posted by his/her employer abroad to work in Ireland (see Appendix 1 re: International Workers);
to seek employment (rather than to take up an actual job offer).

On the other hand, a short period since arrival in Ireland does not automatically prove that an applicant has maintained his/her main centre of interest abroad. Periods of residence abroad and the nature of that residence prior to the date of the latest arrival in Ireland may be relevant in assessing what is the person's main centre of interest and settled intention (see Paragraphs 7.2, 7.4 and 7.5).

Consider the length and continuity of the applicant's residence in Ireland and in the other country:

Has s/he lived in Ireland before, if so for how long?

has the applicant stayed in different countries outside Ireland?
how long did the applicant reside in the previous country before coming or returning to Ireland?
are there any remaining ties with his/her former country of residence?

A person's arrangements for residence are also a necessary part of determining whether it can be described as settled and habitual (see paragraph 7.5).

7.2 - Length and purpose of any absence from Ireland

Habitual residence may be lost where a person spends time away. This may apply in the case of an Irish national who gains stable employment abroad, or a non-Irish national who returns to his/her own country or settles in a third country following a period of residence here. Status as a former worker under EC law is lost when such a person leaves the country for a significant period.

Infrequent return visits or the purchase of a home abroad may point to transfer of the main centre of interest to the other country. On the other hand, established habitual residents of Ireland who have periods of temporary or occasional absence may still be habitually resident during such absences. If a person who is working abroad returns at regular intervals to Ireland e.g. to visit family or because a home has been retained here, it is possible that the main centre of interest remains in Ireland. (See also Appendix 1 re: international workers who are deemed to be habitually resident in the country under whose social insurance scheme they have been retained, even though they are temporarily working elsewhere.) However, it should be borne in mind that the HRC can only be applied at the date of application for the particular payment to which the condition applies (see Part 6).

Returning migrants or Resuming previous residence

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 such cases the DO should 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 (see below) 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.

Replies to the following questions may assist in determining whether an applicant has retained or resumed his or her main centre of interest in Ireland after a period spent abroad:

how long did the applicant live in Ireland before leaving?
why did the applicant come to Ireland originally?
when and why did the applicant leave Ireland?
how long did the applicant remain or intend to remain abroad?
did spouse/civil partner and children, if any, also leave Ireland?
was accommodation retained in Ireland?
if the applicant owned property in Ireland, was it let, and was the lease timed to coincide with the applicant's return to Ireland?
what links did the applicant keep with Ireland?
can the applicant verify cessation of employment, lease or rental agreement etc. abroad?
when and why did the applicant return to Ireland?
have there been other brief absences? If yes, obtain details.

The following examples are acceptable as proof of permanent return to Ireland: (Allow 28 days for documentation to be submitted)

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.

It should be noted that periods spent in prison in Ireland do not accrue towards residency for habitual residence purposes.

Safe-Home Ltd. and returning Irish emigrants

Arrangements were agreed with Safe-Home Ltd, a registered charity, to assist with the difficulty experienced by a minority of returning Irish emigrants in demonstrating their intention to live here permanently for the purposes of satisfying the HRC.

To assist with this issue, Safe-Home has drawn up a check list of a range of documents that will help customers show that they have returned to Ireland permanently.

Safe-Home has also designed a declaration which will confirm where a customer is engaging with them as part of their repatriation. It is intended that the declaration will be associated with any social assistance claim a customer might make. This measure should help to expedite the decision-making process in these cases as it can be accepted as proof that the customer has returned to reside in the State on a permanent basis.

7.3 - Nature and pattern of Employment

The applicant's employment record in Ireland and elsewhere and in particular the nature of any previous occupations and plans for the future are relevant. A person who has lived here for an appreciable period and is working legally in stable employment may be presumed to be habitually resident here unless there are particular circumstances to rebut this presumption. Where the person is in that employment for at least a month or in self-employment for at least 6 months, the person will normally satisfy the habitual residence condition, while the employment is still ongoing. (See below for further details on self-employment).

Responses to the following questions will assist in determining this aspect of the habitual residence condition:-

Work arrangements

Is the work in one of the categories listed as International workers in Appendix 1?
Is the work full time or part time?
How many hours a week does/will s/he work?
Is the work short term employment, e.g. au pair, seasonal work?
Is the applicant on a short term contract with a current employer?
How long has the employment lasted?
Has s/he had previous contracts with the current employer?

Consider the pattern of work, for example:

has the applicant had a succession of casual or short term jobs either in Ireland or the previous country? Be aware that a history of working in short term jobs does not rule out the possibility that a person is habitually resident in Ireland.
what is the name and address of the employer - is there a pattern of employing casual labour?
has the applicant worked in Ireland previously? If so:
- how long ago?
- for what period, either casual or short term?
has the applicant work prospects? If the applicant has come to Ireland to seek work:
- has a job been arranged?
- who has the job been arranged with?
if a job has not been secured,
- have enquiries been made about a job?
- who were the enquiries made with?
- does the applicant have qualifications to match his/her job requirements?
- does the applicant have realistic prospects of finding work?

Conditions for recognising self-employment

For the purpose of habitual residence, self-employment can be recognised if:

the self-employment business has been registered with the Revenue Commissioners and proof of such registration is supplied;
the self-employment business is bona fide, legal self-employment of an ongoing nature; and
The self-employment has been on-going prior to claiming social welfare.

It must comply with any official requirements (in Ireland) with regard to registration/licensing/insurance of the business and the self-employed person has paid their social insurance liability and that of their employees.

Any questions arising with regard to self-employment may be checked either by way of correspondence with the applicant or by referral to a local social welfare inspector for an investigation of the situation. In certain situations it may be necessary to refer certain cases to Scope Section, Oisin House, for a decision as to whether a person is employed or self-employed.

Nationals of Romania and Bulgaria

Romania and Bulgaria joined the EU on 1st January 2007. Romanian or Bulgarian nationals are not permitted to engage in employment within the State unless they hold or have held an employment permit for the first continuous 12 months of employment (see Appendix 8 for details of Romanian and Bulgarian workers and family members who are not required to hold an employment permit). An exemption from the work permit rule applies to Romanians and Bulgarians who have graduated from an Irish third level institution with a primary (level 7) degree or higher, and who were employed for at least 12 months since 1/1/2007 while a student.

If they were not in possession of a work permit or exempt under the above conditions, the employment was illegal and cannot be counted for habitual residence purposes.

If they are engaged in self-employment, they are required to be registered with the Revenue Commissioners and be in possession of a certificate of registration. They must also have been actively engaged in self-employment prior to Jobseekers Allowance claim. They do NOT need a work permit for self-employment. (See work permit requirements for Romanian and Bulgarian nationals at Appendix 8).

7.4 - Applicant's main centre of interest

An applicant's main centre of interest, at the time of application, must be in the Republic of Ireland.

As stated previously, examination of the other 4 factors together will assist in determining the applicant's main centre of interest, and thereby their place of habitual residence.

A person's main centre of interest would normally be in the country in which s/he has lived all his/her life and has his/her home and family. This may be maintained even where a person lives and works for a period of time in another country.

On the other hand, a person who previously lived in another country or countries may now have moved to Ireland on long-term basis and established a main centre of interest here. For example, returned emigrants or retired missionaries who have chosen to resettle in Ireland should be considered to have their main centre of interest here. (See also under Section 7.2 above.)

In determining where an applicant's main centre of interest lies, the following should be taken into consideration:

location of home
location of close family (spouse/civil partner/children etc.) – note that an automatic disallowance should not be applied where a person's spouse/civil partner or children remains in another country. Therefore, a person may be found to be habitually resident even though his/her spouse/civil partner or children have remained in another country – due and careful consideration must be given to all of the other factors
nature of employment
does membership of clubs, etc. indicate that s/he is integrating into society here?
location of financial/bank accounts and other assets
certification of ownership/non-ownership of property in country of origin.

If the centre of interest appears to be in Ireland but the applicant has retained a home elsewhere, consider what the intention is concerning the property.

If the applicant has come to Ireland to join or rejoin family or friends, consider:

has s/he sold or given up any property abroad?
has s/he bought or rented accommodation or is s/he staying with friends?
is the applicant's move to Ireland permanent or for an indefinite but long- term period?

7.5 - Future intentions of applicant

A stated intention to reside in Ireland for the foreseeable future does not, of itself, mean that the main centre of interest has been established here, and must be evaluated in the light of the other factors discussed above. For example, a person staying with friends would on the face of it appear to have a less settled intention; whereas purchasing a house and paying a mortgage or entering into a long term lease would be indicative of a more settled intention to remain in Ireland.

It is important to consider the applicant's initial reasons and intention for coming to Ireland. If an applicant came to Ireland with the intention of staying only for a short time, e.g. for holidays, to visit friends, to do seasonal work or for medical treatment, significant evidence must be shown to vindicate a statement that his/her intention is now to remain habitually resident in Ireland. (Note: a non-EEA national granted a Stamp 3 visa for a maximum of 90 days will normally have to leave the country and reapply for a different visa in order to change status. See Appendix 7 re: various Stamps.)

Even where a person has an extended period of residence in this country, the viability of a person's residence in Ireland, either with or without assistance from public funds, is one relevant factor among others to be given appropriate weight according to the circumstances of the case.

Consider the applicant's plans, for example:

if s/he plans to remain in Ireland, is the stated plan consistent with his/her actions?
is the applicant prohibited from taking up employment or self-employment (see conditions below) in Ireland in accordance with the terms of his/her residence permit?
where necessary, has a non-EEA applicant complied with any immigration requirements in regard to renewal of a work permit/residence permit?
were any arrangements made for employment and accommodation before the applicant arrived in Ireland?
did s/he buy a one way travel ticket to Ireland?
has the applicant transported all his/her belongings to Ireland?
If the applicant owns a car, has it been reregistered, or insured on a 12 month basis? (Where the person has lived in Ireland over 12 months and has not reregistered the car, one can assume that residence abroad is still being claimed for this purpose.)
is there any evidence of establishing long-term links with Ireland, e.g. membership of associations or clubs?

Note: On-going court judgments mean that case law is constantly evolving.

APPENDIX 1 – Additional Information In Relation To Habitual Residence Status Of Specific Categories

(a) Certain Categories Of Non EEA Nationals

Some additional information with regard to certain specific categories of persons is as follows:

Employment Permit Holders

Non-EEA nationals living in Ireland must have an employment permit to work in Ireland.

Applications from employment permit holders should be examined in detail having regard to the five factors set out in Part 7 above. The fact that an employment permit has a limited period of validity is not taken as evidence that the person is not habitually resident in Ireland. Employment permit holders may be considered to be habitually resident if they have a period of one month's insurable employment or six month's self-employment during which they have been continuously resident along with their families in the State. This means that they are habitually resident while they are employed or self-employed. Where a person fails to renew their employment permit, employment subsequent to the expiry of the last permit held cannot be taken into consideration of the factors in Part 7 unless and until they obtain a valid employment permit for that period.

Residence Permits issued subject to "not being a burden on the State"

Certain permissions to remain in the State issued by the Department of Justice and Equality specify that the holder must not become a burden on the State. The receipt of Child Benefit by a person who is self-supporting through employment, self-employment or otherwise, would not be considered being a burden on the State, but dependency on a basic assistance payment (e.g. Basic SWA or Jobseeker's Allowance) could. On receipt of a claim in such a case, the Department of Justice and Equality should be consulted and their opinion obtained as to whether the person has invalidated his or her right to reside in Ireland. (See also Part5 re: Sufficient resources and burden on the State).

Short-time Missionary or Voluntary Work

Periods spent doing short-term missionary or voluntary work in this country, where the person is fully supported from abroad and is not registered for Irish tax or PRSI purposes, do not contribute towards habitual residence here. Missionaries who have chosen to resettle in Ireland should be considered to have their main centre of interest here.

(b) The following categories of people will normally satisfy the HRC:

Persons who have lived all of their life in the State

A person who has lived in the State all of their life is very likely to be habitually resident. Such persons are required to complete the HRC section in the primary claim form (Form UP1). Where the records of the Department show ongoing residence by way of employment or dependence on a social welfare payment, by either the claimant, or a dependant of a spouse/civil partner or parent, habitual residence is normally satisfied in such cases. Where there are periods unaccounted for, a claimant should be asked to provide any additional evidence to substantiate their continued residence in Ireland. Holiday periods abroad or certified periods of study abroad, irrespective of duration, do not compromise habitual residence in Ireland.

International Workers

The following categories of workers are generally regarded as habitually resident in Ireland even when working abroad if they return at regular intervals to Ireland and maintain their principal place of residence here:

posted (or seconded) workers;
frontier workers;
seafarers including those working on ships flying the flag of a foreign country;
seasonal workers;
international transport workers;
sales agents;
those employed in Irish diplomatic missions or Irish consular posts, and the private domestic staff of agents of such missions or posts who are subject to Irish social security law (i.e. Irish PRSI).

In considering whether the intervals are regular, due regard is given to the characteristics of the employment, where s/he is working, where s/he spends his/her holidays etc.

Likewise, such workers who work in Ireland but have their main centre of interest abroad and return there at frequent intervals are generally regarded as not being habitually resident in Ireland.

Deportees

Irish nationals who have been deported from other countries, e.g. USA and return to live in Ireland having lived here previously normally satisfy the HRC, if their centre of interest is Ireland. Form HRC1 should be completed in full in these cases and copies of deportation papers requested in support of statement of deportation. DO's should bear in mind that they can't go back to the country that they've been deported from.

(c) Categories where examination of 5 factors may be required:

The following categories of claimant must be in a position to provide proof that they have lived in the State continuously (with the exception of short holiday periods outside the State) since being granted permission to reside here. Proof of continuous residence in the State can be ascertained by way of registered and legal employment by either the claimant themselves, a spouse/civil partner or a parent in the case of a person who has reached 18 years OR support by way of a Social Welfare/Health Service Executive payment as the primary claimant or as an adult/child dependant of another person on a Social Welfare/Health Service Executive payment or in employment.

Note: Statements of financial support by or from friends are not acceptable as proof of continuous residence in the State.

In cases where permission to remain here, on the grounds outlined at any of the categories below, has been granted by the Department of Justice and Equality, and the person has lived here continuously since being granted that permission, or initial date of stated arrival, the centre of interest continues to be in the State. Where s/he is in a position to provide the necessary documentary evidence of permission to remain, s/he is generally considered to satisfy the HRC.

Such persons are required to complete the habitual residence section in the primary claim form (Form UP1).

Refugees

Refugees are people who have sought asylum, and have been granted Refugee status by the Minister for Justice and Equality (Section 17 of the Refugee Act 1996), having left their country of origin and are unwilling to return there for fear of persecution because of their race, religion, nationality, political opinion or membership of a social group. People granted refugee status by the Minister for Justice and Equality are granted permission to remain in the State on Stamp 4 (see Appendix 7).

Those granted refugee status in Ireland can only be regarded as habitually resident from the date of grant of that status, provided they have lived continuously in the State since then, and cannot be treated as habitually resident for any time before that. If however there is evidence that they have not lived continuously in the State since refugee status was granted, their applications will require detailed consideration having regard to the five factors set out in Part 7 above. The grant of refugee status by an EU Member State imposes an obligation to provide social assistance within that Member State only. It does not create a right to social assistance in another Member State.

It should be noted that refugees are FORMER asylum seekers.

Programme Refugees

A limited number of persons may be allowed entry to the country as programme refugees. These are persons whose refugee status is determined in the context of a resettlement programme (section 24 of the Refugee Act 1996). On this basis they should be treated as habitually resident in Ireland from date of arrival here.

Subsidiary Protection

A person who does not satisfy the conditions to be granted refugee status, but is at risk of suffering serious harm if returned to their country of origin, may be granted subsidiary protection by the Minister for Justice and Equality under the provisions of the EC (Eligibility for Protection) Regulations 2006. This gives similar rights to that of refugee status, and a person and members of their family granted permission to remain in Ireland under these provisions should be treated as habitually resident from the date of that grant. Section 246 (7) of the Social Welfare Consolidation Act 2005 provides that a person shall not be regarded as habitually resident while their application for subsidiary protection is awaiting a final decision. The same subsection also excludes those whose applications have been refused.

Temporary Leave to Remain

The Minister for Justice and Equality has discretion under the Immigration Act 1999 to grant temporary leave to a person to remain in Ireland, where a person's application for refugee status or subsidiary protection has failed. This will be granted for a specified period and may be renewed. Section 246 (7) of the Social Welfare Consolidation Act 2005 provides that a person shall not be regarded as habitually resident while their application is awaiting a final decision. The same subsection also excludes those whose application has been refused.

An applicant who is given such temporary leave to remain may be treated as habitually resident from the date of that grant.

A full investigation of the habitual residence criteria may be necessary in some cases – e.g. if insufficient information is available as to the person's whereabouts or means of support during the period when the application for leave was under consideration. Proof of continuous residence in Ireland can be ascertained by way of a Social Welfare/HSE Payment as the primary claimant or as an adult/child dependent of another person on Social Welfare/HSE payment or in employment. Note: Statements of financial support from friends are not acceptable.

Non-EEA Nationals and visa requirements

A non-EEA national may be permitted to enter and be present in the State as a visitor for a maximum period of up to 3 months, but he/she cannot be considered resident during that period. Permission to reside longer than that should be evidenced by an appropriate immigration stamp in the person's passport (see Appendix 7) and a Certification of Registration issued by the GNIB (i.e. a GNIB card). Permission to remain in Ireland must be verified by both the letter from the Department of Justice and Equality outlining the grounds on which permission to remain has been granted and an up-to-date and valid residency permit, Stamp 4 issued by GNIB.

Where temporary leave to remain here on the grounds outlined above, has been granted by the Department of Justice and Equality, where s/he has lived here continuously since being granted permission to remain here since initial date of stated arrival, centre of interest continues to be in the State and where s/he is in a position to provide the necessary documentary evidence of permission to remain, s/he is generally considered to satisfy the HRC. Such persons are required to complete the habitual residence section in the primary claim form (FORM UP1).

Where a person has NOT lived here continuously since initial arrival a detailed examination of their case will be carried out to ascertain if there are any changes in circumstances that may result in a disallowance of habitual residence. The Form HRC 1 must be completed in all these cases.

However, in all cases it should be borne in mind that the HRC can only be applied at the date of application for the particular payment to which the condition applies (see Part 6) and the position cannot be reviewed for the duration of that claim even it if it appears that there is a change in the person's circumstances.

Parents of Irish born children

Parents of Irish born children who have been granted leave to remain on this basis may also be treated as habitually resident from the date leave was granted and for the duration of the permission to remain, subject to examination of the habitual residence criteria in any case of doubt.

Family Reunification

Permission to remain in Ireland may be granted to dependants (a spouse/civil partner or dependent child) of a person (the sponsor) who has been granted refugee status or of a non-EEA national who is working in the State on the basis of an employment permit. In the latter case the holder of the employment permit must be working in Ireland for at least 12 months before applying for family reunification except where the permit is a Green Card Permit (awarded in certain specific circumstances only) in which case an immediate application for family reunification may be made. Family members of persons with refugee status may be granted permission by the Minister for Justice and Equality to enter and reside in the State under Section 18 of the Refugee Act 1996, and may work in Ireland without obtaining an employment permit and may establish a business.

Family members of employment permit holders must obtain a spousal/dependant employment permit from the Department of Enterprise, Jobs and Innovation if they wish to work in the State. The resident spouse/civil partner and/or dependants of persons in either of these categories will normally hold the same habitual residence status as that of the sponsor. Such family members should be treated as habitually resident as long as they and the sponsor retain permission to be in the State.

Periods spent in prison

In all cases outlined, periods spent in prison in the State, invalidate the grounds on which a person has been granted permission to reside in the State.

Jobseekers and others who do not enter the labour force

A jobseeker who moves from one EEA country to another in order to seek employment cannot claim the advantages for migrant workers under EC law and is subject to the habitual residence condition in the normal manner. Where an EEA national has not been employed since coming to Ireland and makes a claim for any of the payments listed in Section 1 above, the five habitual residence factors set out in Part 7 should be examined in each case.

APPENDIX 2 – EC Regulations For Determining The Place Where A Person Habitually Resides

EC Regulation 883/2004 and its implementing Regulation 987/2009 contain provisions relating to co-ordinating social security systems within the EU/EEA. The following extract from Regulation 987/2009 (Article 11) sets out a number of elements for determining the place where a person habitually resides:

Elements for determining the place where a person habitually resides

1. Where there is a difference of views between the institutions of two or more Member States about the determination of the residence of a person to whom the basic Regulation applies, these institutions shall establish by common agreement the centre of interests of the person concerned, based on an overall assessment of all available information relating to relevant facts, which may include, as appropriate:

the duration and continuity of presence on the territory of the Member States concerned;
the person's situation, including:
1. the nature and the specific characteristics of any activity pursued, in particular the place where such activity is habitually pursued, the stability of the activity, and the duration of any work contract;
2. his family status and family ties;
3. the exercise of any non-remunerated activity;
4. in the case of students, the source of their income;
5. his housing situation, in particular how permanent it is;
6. the Member State in which the person is deemed to reside for taxation purposes.

Where the consideration of the various criteria based on relevant facts as set out in paragraph 1. does not lead to agreement between the institutions concerned, the person's intention, as it appears from such facts and circumstances, especially the reasons that led the person to move, shall be considered to be decisive for establishing that person's actual place of residence.

APPENDIX 3 - The Legislation, Including National Law

National Legislation

The HRC is included in the particular Section of the Social Welfare Consolidation Act 2005 listing the conditions of entitlement for each of the relevant schemes. For example, in relation to Jobseeker's Allowance, Section 141 (9) provides: "A person shall not be entitled to jobseeker's allowance under this section unless he or she is habitually resident in the State at the date of the making of the application for jobseeker's allowance."

This also applies to the other schemes listed in Section 1 to which the HRC applies.

In addition, Section 246 of the Social Welfare Consolidation Act 2005 provides that:

(1) For the purpose of each provision of this Act specified in subsection (3), it shall be presumed, until the contrary is shown, that a person is not habitually resident in the State at the date of the making of the application concerned unless the person has been present in the State or any other part of the Common Travel Area for a continuous period of 2 years ending on that date.

(2) In subsection (1) "other part of the Common Travel Area" means the United Kingdom of Great Britain and Northern Ireland, the Channel Islands and the Isle of Man.

(3) The provisions of this Act referred to in subsection (1) are sections 141(9), 154(c), 163(3), 168(5), 173(6), 180, 192, 210(9) and 220(3).

(4) Notwithstanding the presumption in subsection (1), a deciding officer or the Executive (i.e. the HSE), when determining whether a person is habitually resident in the State, shall take into consideration all the circumstances of the case including, in particular, the following:

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.

(5) Notwithstanding subsections (1) to (4) and subject to subsection (9), a person who does not have a right to reside in the State shall not, for the purposes of this Act, be regarded as being habitually resident in the State.

(6) The following persons shall, for the purpose of subsection (5), be taken to have a right to reside in the State:

an Irish citizen under the Irish Nationality and Citizenship Acts 1956 to 2004;
a person who has a right to enter and reside in the State under the European Communities (Free Movement of Persons) (No.2) Regulations 2006 (S.I. No. 656 of 2006), the European Communities (Aliens) Regulations 1977 (S.I. No. 393 of 1977) or the European Communities (Right of Residence for Non- Economically Active Persons) Regulations 1997 (S.I. No. 57 of 1997);
a person in respect of whom a declaration within the meaning of section 17 of the Act of 1996 is in force;
a member of the family of a refugee, or a dependent member of the family of a refugee, in respect of whom permission has been granted to enter and reside in the State under, and in accordance with, section 18(3)(a) or, as the case may be, section 18(4)(a) of the Act of 1996;
a programme refugee within the meaning of section 24 of the Act of 1996;
a person who has been granted permission to remain in the State under Regulation 4(4) of the Regulations of 2006;
a person who has been granted permission to enter, and reside in, the State under Regulation 16(3)(a) or 16(4)(a) of the Regulations of 2006 by the Minister for Justice and Equality;

h. a person whose presence in the State is in accordance with a permission to be in the State given by or on behalf of the Minister for Justice and Equality under and in accordance with section 4 or 5 of the Immigration Act 2004.

(7) The following persons shall not be regarded as being habitually resident in the State for the purpose of this Act:

a person who has made an application under section 8 of the Act of 1996 and where the Minister for Justice and Equality has not yet made a decision as to whether a declaration under section 17 of the Act of 1996 will be given in respect of such application;
a person in respect of whom an application for subsidiary protection has been made under Regulation 4 of the Regulations of 2006 and where a determination under that Regulation has not yet been made in respect of such application;
a person who has been notified under section 3(3)(a) of the Immigration Act 1999 that the Minister for Justice and Equality proposes to make a deportation order, whether or not that person has made representations under section 3(3)(b) of that Act, and where the Minister for Justice and Equality has not yet made a decision as to whether a deportation order is to be made in respect of such person;
a person who has made an application under section 8 of the Act of 1996 which has been refused by the Minister for Justice and Equality;
a person in respect of whom an application for subsidiary protection has been made under Regulation 4 of the Regulations of 2006 and a determination has been made that the person is not eligible for subsidiary protection under the Regulations of 2006;
a person in respect of whom a deportation order has been made under section 3(1) of the Immigration Act 1999.

(8) For the purpose of this Act, where a person-

is given a declaration that he or she is a refugee under section 17 of the Act of 1996,
is granted permission to enter and remain in the State under section 18(3)(a) or 18(4)(a) of the Act of 1996,
is granted permission to remain in the State under Regulation 4(4) of the Regulations of 2006,
is granted permission to enter and reside in the State under Regulation 16(3)(a) or 16(4)(a) of the Regulations of 2006, or
is granted permission to remain in the State under and in accordance with the Immigration Act 1999 or the Immigration Act 2004,

he or she shall not be regarded as being habitually resident in the State for any period before the date on which the declaration referred to in paragraph (a) was given or the permission referred to in paragraph (b), (c), (d) or (e), was granted.

(9) Notwithstanding that a person has, or is taken to have in accordance with subsection (6), a right to reside in the State the determination as to whether that person is habitually resident in the State shall be made in accordance with subsections (1) and (4).

(10) In this section-

'Act of 1996' means the Refugee Act 1996;

'Regulations of 2006' means the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006)."

S.I. No. 656/2006 — European Communities (Free Movement of Persons) (No. 2) Regulations 2006 - download form the Irish Statute Book website

Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community - download from the 'eur-lex Access to European Law' website.

Please note the following articles of the regulation (Regulation (EEC) No 1612/68) have been repealed:
Article 10 repealed by Directive 2004/38
Article 11 repealed by Directive 2004/38

APPENDIX 4 - Application Of EU Rules To Child Benefit, One Parent Family Payment, Guardian's (Non Contributory) Pension And Domiciliary Care Allowance

The following may be of assistance in explaining the varying rules in the application of habitual residence for appeal purposes:

Child Benefit

Child Benefit is paid for each child under the age of 16. This limit is extended to age 18 if the child is receiving full-time education or is incapacitated.

Child Benefit is classified as a Family Benefit under EU Regulation 883/2004. This regulation provides for exemption from general habitual residence rules for Child Benefit where either the Child Benefit claimant or cohabiting partner/spouse/civil partner is an EEA citizen and employed or self-employed and subject to PRSI in Ireland at the time of award of Child Benefit. Such an exemption does not apply to habitual residence for Jobseekers Allowance and the award of Child Benefit cannot be taken as a precedent to approve habitual residence for Jobseekers Allowance, as a determination on habitual residence was not necessary at the time of the award of Child Benefit.

One Parent Family Payment & Guardians Payment (non contributory) and Domiciliary Care Allowance

One Parent Family Payment is a payment for men and women under pension age (66 years) who are bringing up a child or children without the support of a partner.

Guardian's Payment (non-contributory) is a means-tested payment that is normally paid to the guardian of an orphan. It continues up to age 18, or age 22 if the orphan is in full-time education by day at a recognised school or college.

Domiciliary Care Allowance is a payment for children up to the age of 16 years who live at home and need substantially more care and attention than normally required by children of the same age.

One Parent Family Payment, Guardian's Payment (non-contributory) and Domiciliary Care Allowance, are also classified as Family Benefits under EU law. In relation to exemption from the habitual residence condition for migrant workers in respect of Family Benefits: EU Regulations 883/2004 and 987/2009 apply. (Note the previous Regulations 1408/71 and 574/72 still apply to the EEA countries (Norway, Iceland, Liechtenstein and to Switzerland.)

It is important to note that in order to establish if an applicant for One Parent Family Payment/Child Benefit/Guardian's Payment (Non-Contributory)/Domiciliary Care Allowance is to be exempt from the habitual residence condition under the above EU Regulation, a deciding officer or determining officer must determine if the applicant is or was in fully registered employment i.e. registered with the Revenue Commissioners etc. Written certification from an employer must be provided. The duration and current continuity of the employment should also be sought from the employer.

Proving that the claimant is or has been subject to Irish PRSI System means that an Irish contribution has to be paid. Certification of employment from the Irish employer (e.g. contract of employment) or employment registered on the ERIN employment system is acceptable. The duration of and termination of employment in Ireland is not a factor in deciding these cases.

Self-employment can be recognised as a viable proposition only if the self-employment business has been registered with the Revenue Commissioners and proof of such registration is supplied and the self-employment business is bona fide and legal self-employment of an ongoing nature. It must comply with any official requirements (in Ireland) with regard to registration / licensing/ insurance of the business and be financially viable.

Where an applicant for One Parent Family Payment/ Child Benefit/Guardian's Payment (Non-Contributory)/Domiciliary Care Allowance does not qualify for the exemption from the habitual residence condition under EU regulations, it is then necessary to assess the case under the 5 factors for habitual residence (see Part 7).

APPENDIX 5 - Application Of EU Rules To SWA

Application of HRC to EEA workers for SWA purposes

The HRC, for the purposes of SWA, is contained in Section 192 of the Social Welfare Consolidation Act 2005 which provides that "a person shall not be entitled to an allowance (other than an allowance under sections 201 and 202) under this Chapter unless he or she is habitually resident in the State at the date of the making of the application for the allowance." Allowances excluded from the scope of Section 192, are exceptional needs payments (section 201) and urgent needs payments (section 202).

An applicant who satisfies the HRC must, of course, also satisfy the other conditions of entitlement in order to receive the allowance. Therefore, the DO should bear in mind that habitual residence is only one condition and be mindful of the need to be proportionate in its aim, which is to ensure there is a link between the claimant and the State. In this respect it should be remembered that an unduly harsh application of the habitual residence condition could be unlawful.

The following provision applies only to employed persons, not to self-employed persons.

The entitlement of EEA nationals to SWA is affected by the provisions of EEC Regulation 1612/68 which deals with the freedom of movement of migrant workers within the EU, including their employment rights and the rights of their families.

Article 7 (2) of EEC Regulation 1612/68 provides that an EEA worker who is a national of a Member State shall enjoy the same social and tax advantages as national workers. This includes social benefits guaranteeing the minimum means of subsistence (which in Ireland means SWA), which means that they will be treated the same as a national worker. Accordingly, on the basis of the principle of equal treatment as outlined, workers from other EEA countries should be treated in the same way as national (Irish) workers in determining entitlement to SWA. This will apply particularly to part-time workers working less than 30 hours a week who may qualify for SWA.

An EEA national who is engaged in genuine and effective employment in Ireland is regarded as a migrant worker under EC law and does not need to satisfy the HRC for the purpose of any claim to SWA. A person who has been so employed and retains his or her "worker" status in accordance with Regulation 1612/68 as amended by Directive 2004/38 (transposed into Irish legislation by S.I. 656/06) continues to be protected by this provision. This means that EEA nationals who have been employed since arriving in Ireland may be entitled to SWA, even if they do not satisfy the HRC for Jobseeker's Allowance or one of the other payments subject to the condition. Such persons should therefore be advised to enquire with their local Community Welfare Officer as to their possible entitlement to SWA as a migrant EU worker.

"Genuine and effective employment" is not clearly defined in EU law or case-law. In general, it is contrasted with employment which is marginal and ancillary, and national authorities should determine this issue according to the circumstances of each case. The European Court of Justice has ruled, however, that part-time employment may constitute genuine and effective employment even if the income is so low as to allow a successful claim to income support like SWA. "Marginal and ancillary" is also not clearly defined, DO's will need to satisfy themselves of the validity of the employment and whether it is genuine.

If the right to reside expires (for example a person who worked less than 1 year and has been unable to obtain work for the following 6 months) then entitlement to protection under this provision ceases. However, if the person is in receipt of SWA, his/her continued entitled to that payment cannot be reviewed on habitual residence grounds at the end of that 6 month's period.

(Note: This requirement does not apply in the case of other social welfare benefits such as Jobseeker's Allowance or non-contributory State Pension as the provisions of Regulation 883/04 which deal with the co-ordination of social security entitlements for migrant workers moving within the EEA specifically allow for the application of a HRC in relation to such payments.)

Apart from the provisions of EU law which apply to "EEA workers" and "former workers", all SWA payments – including basic, rent, mortgage, diet, heating and other supplements - are subject to the requirement that the claimant satisfies the HRC. However, exceptional needs payments (ENPs) and urgent needs payments (UNPs) are not subject to the HRC. Entitlement to these payments are assessed in accordance with Sections 201 (ENPs) and 202 (UNPs) of the Social Welfare (Consolidation) Act 2005 and Department of Social Protection guidelines issued in 1996.

Subject to the provisions outlined, SWA cannot at any time be viewed as a temporary or interim means of income support available independently of the HRC, while an applicant awaits the outcome of either a decision - or an appeal against a decision - on a claim for a social welfare payment from Department of Social Protection.

Meaning of Worker in EU law for the purposes of SWA

The term EEA worker has a definition that is derived from the relevant EU Regulation 1612/68 and Directive 2004/38 (effective in Ireland by virtue of SI 656/06), and associated case law.

An EEA migrant worker who is in genuine and effective employment in Ireland is regarded as a worker for EU purposes. However, work should not be regarded as not being effective and genuine on the sole grounds that it is part-time work or that it provides an income lower than the subsistence rate under State social assistance, i.e. Basic SWA.

The Community Welfare Officer should determine this question in each case on its own merits taking account of all work done by the claimant and consider among other things the following:-

the period of employment;
the number of hours worked;
the level of earnings;
whether the work was regular or irregular
whether the person has become voluntarily unemployed
if registered employer is an agency, actual hours and period of employment needed.

Habitual residence disallowance for Jobseekers Allowance/One Parent Family Payment – Supplementary Welfare Allowance in payment

An applicant for SWA/Rent Supplement does not benefit from the HRC exemption under EU Regulations based on the employment status of a spouse/civil partner.

If the Jobseekers Allowance/One Parent Family Payment claimant appeals a habitual residence decision, the Appeals Office may take into consideration that SWAe/Rent supplement is in payment. In the event of an appeal it is important that a deciding officer explains in an appeal submission why SWA/Rent supplement is in payment (for instance, it may be because of EU migrant worker status) and that exemptions under EU Regulations do not apply to Jobseekers Allowance/One Parent Family Payment in the particular case being appealed.

APPENDIX 6 - Details Of:-

EEA/EU Nationals Who Have A Right Of Residence,

Dependant Family Members Who Have A Right To Reside,

Family Members Following Death, Departure From State, Divorce Or Annulment

Note: It is important to note that where an EEA/EU national and members of their family have a right of residence, this does not mean that they automatically satisfy the HRC.

Provisions regarding right of residence

The provisions regarding right of residence for EEA nationals, which are listed in Section 246 (6)(b), may be summarised as follows. Note that EEA nationals from non-EU countries (i.e. Norway, Iceland and Liechtenstein) are included in the provision of S.I. 393/1977 and S.I. 57/1997, but not in certain provisions of S.I. 656/2006.

(a) EEA/EU nationals who have a right of residence

EEA/EU nationals who are employed or self-employed.
EEA/EU nationals who have ceased employment or self-employment in the State because they have reached pension age or have taken early retirement, having resided continuously in the State for 3 years before retirement and been employed or self-employed for at least the last 12 months before retirement.
EEA/EU nationals who, having resided here for at least 2 years, cease employment or self-employment here because they have become permanently incapacitated.
EEA/EU nationals who are in receipt of Irish disablement benefit following an occupational injury.
EEA/EU nationals and family members of EEA/EU nationals, who have resided legally in Ireland for 5 years or more, have a right of permanent residence here, regardless of whether they continue to be self-supporting or become dependent on social welfare support. This right however ceases to exist if they are absent from the State for more than 2 years.
EU nationals who have been employed or self-employed here may continue to reside during a period when they are temporarily unable to work as the result of illness or accident, or during a period of vocational training related to their previous employment.
EU nationals who have been employed here for more than a year and who have become involuntarily unemployed may continue to reside as long as they are registered as job-seekers with this Department and with FÁS.
EU nationals who have been employed here for less than a year and become involuntarily unemployed may continue to remain for a further period of 6 months provided they are registered as job-seekers with this Department and with FÁS. See above regarding their possible entitlement to Supplementary Welfare Allowance during this period.
EU nationals who have sufficient resources to support themselves, their spouse/civil partner and any accompanying dependents and have comprehensive sickness insurance.
EU nationals who are enrolled in an educational establishment in the State for the principal purpose of following a course of study and have comprehensive sickness insurance.
EU nationals may reside in the State as visitors or jobseekers for up to 3 months provided they do not become an unreasonable burden on the social welfare system of the State during this period.

(b) Dependent family members who have a right to reside

Family members of EEA nationals (whether they are EEA nationals or not) have a right to reside, provided that the EEA national has such a right or has sufficient resources to support them.
In the case of EU nationals whose right to reside is because they are following a course of study, this right is restricted to a spouse/civil partner, a direct descendant (e.g. child or grandchild) of the student or spouse/civil partner who is under the age of 21 or for other reason a dependant of the student or spouse/civil partner, and a direct relative in the ascending line (e.g. parent or grandparent) of the student or spouse/civil partner who is dependent on them. If the child of an EU worker who has a right to reside commences a course of study, the child's right to complete that course of study may result in a parent who has the primary care for that child having a continuing right to reside up to the child's 18^th birthday even if that parent is not the EU national.
In the case of persons who are employed, self-employed, or otherwise have sufficient resources to maintain such dependants, the term "family member" is expanded to include persons who had an established relationship as a dependant or family member of the EU national in their country of origin or habitual residence or previous residence. This includes, for example, a partner if the relationship is durable and duly attested, a person who for serious health grounds was dependent on personal care by the EU national, or other member of the EU national's household.
In the case of EEA (non-EU) students, dependants include spouse/civil partner and children under 18 years of age, and in the case of other EEA nationals dependants include spouse/civil partner, children under 21 years of age and their spouse/civil partner, and other direct descendants or ascendants who are dependent on them.

(c) Family Members following death, departure from State, divorce or annulment

An EU national retains their right of residence on a personal basis even if the EU citizen, from whom that right was originally derived, dies or leaves the State. Their entitlement to permanent residence after 5 years however depends on their satisfying a condition of employment, being self-sufficient, studying or deriving a right of residence from another EU national.
The same provisions apply to an EU national (family member) in the event of divorce or annulment of the marriage.
A non-EU national family member may retain their right of residence on a personal basis if they were living in the State for a year before the death or departure of the EU national, AND are in employment or otherwise self-sufficient.
A non-EU family member may retain a right of residence subject to the following conditions:
- following divorce or annulment where the marriage lasted at least 3 years before initiation of the divorce or annulment proceedings, including one year in Ireland, OR
- where the person was a victim of domestic violence during the marriage, OR
- where the person has been granted custody of the EU national's children by agreement or by court order, OR
- where the person has right of access to a minor child which is by court order restricted to access in Ireland.
The right to permanent residence in such cases after 5 years is also dependent on the person being in employment or otherwise self-sufficient.

(d) EU Migrant Workers and Jobseekers

A deciding officer must have due regard to EC law where it is applicable. EC Regulations (e.g. 883/2004) have direct application in all Member States whereas Directives must be transposed into national legislation (e.g. Directive 2004/38 has been transposed by S.I. 656/06).

APPENDIX 7 - Endorsement Stamps And Work Visas/Permits

Guidelines on the application of HRC criteria to holders of main Immigration Stamps as currently used by the Department of Justice and Equality. The Immigration Stamps are not an interpretation of legal entitlements. The DJE has the right to assign or refuse Immigration Stamps to the various categories of person as it deems appropriate.

The Stamps are under review by DJE and DJE may make changes as it deems necessary.

The following immigration stamps (1-4) are currently used by An Garda Siochana when registering non-nationals.

Stamp 1
General Conditions	Categories to whom it applies
Permitted to remain in Ireland on conditions that the holder does not enter employment unless the employer has obtained a permit, does not engage in any business or profession without the permission of the Minister for Justice & Equality and does not remain later than __________________.	non-EEA nationals in possession of a work permit, who has been granted permission to engage in business on the State. Spouses of work permit holders who entered the State on a d-join spouse visa, who have since obtained a spousal/dependent work permit from Department of Enterprise, Trade and Employment. Persons on working holidays authorisation. Persons availing of the work and travel Ireland programme. Persons from US and Bulgaria can receive stamp for 5 months, and persons from Canada receive a year stamp to avail of casual employment and travel. Persons on business permission Medical Practitioners
HRC criteria to be examined - may be habitually resident e.g. if accompanied by family, following a period of one month's insurable employment or six months' self-employment during which claimant was continuously resident in the State. Subject to review of entitlement following expiry of employment permit.

Stamp 1A
General Conditions	Categories to whom it applies
Permitted to remain in Ireland for the purpose of full time training with _________________until ________. No employment allowed _______________________________________ For Minister for Justice and Equality	Accountant students working for a company recognised by ACCA, CPA or CIMA
*Not Habitually Resident in view of visa restrictions on purpose and duration of stay*

Stamp 2
General Conditions	Categories to whom it applies
Permitted to remain in Ireland to pursue a course of studies on condition that the holder does not engage in any business or profession other than casual employment (defined as 20 hours per week during school term and up to 40 hours per week during school holidays) and does not remain later than _______.	students attending a full-time educational which leads to a qualification recognised by the Department of Education and Science. Persons availing of the Graduate Scheme, who are granted permission to remain for a six month period in order to obtain employment under work permit conditions. Supernumerary Medical Practitioners (Doctors in unpaid posts to gain experience). Persons who are attending FETAC courses
HRC criteria to be examined. Note: A foreign-born spouse/civil partner or dependent child of a Stamp 2 holder may be allowed to enter Ireland on a 90 day visitor's visa, but would not normally be granted permission to remain in the State.

Stamp 2A
General Conditions	Categories to whom it applies
Permission to remain in Ireland to pursue a course of studies and on condition that the holder does not enter employment, does not engage in any business or profession, has no recourse to public funds, and does not remain later than _______.	students not attending a course that leads to a recognised qualification by the Department of Education and Science leaving certificate students students attending part-time courses that leads to a recognised qualification by the Department of Education and Science
*Not Habitually Resident in view of visa restrictions on purpose and duration of entry, and on recourse to public funds*

Stamp 3
General Conditions	Categories to whom it applies
Permitted to remain in Ireland on conditions that the holder does not enter employment, does not engage in any business or profession and does not remain later than _______.	visitors & tourists spouses of work permit holders partners of Irish or non-EA nationals Dependants of persons on Stamp 1 or Stamp 4 Ministers of Religion and Orders spouses of temporary of temporary registered doctors (since approx. 19th April 2002) persons receiving medical treatment retired persons of independent means Writers and artists NB employment is prohibited.
Normally visitors, tourists and persons receiving medical treatment are given a stamp number 3 which is only valid for a 90 day stay, and holders of such limited visas would not satisfy HRC. Applications from persons in one of the other categories above require examination on an individual basis of all the circumstances relevant to the HRC criteria. In relation to factor 3, as employment is prohibited, habitual residence would be dependent on the person having sufficient independent means See also the note regarding spouses under "Family Reunification".

Stamp 4
General Conditions	Categories to whom it applies
Permitted to remain in Ireland until ___________________________.	EEA nationals spouses of EEA/Irish nationals parents of Irish citizens born in the State(who have been granted permission to remain on that basis) persons granted refugee status under the terms of the 1951 Geneva Convention spouse of refugee former asylum seekers granted humanitarian leave to remain refugees here under Government decision (i.e. Bosnians, Kosovans, Vietnamese) Temporary registered doctors (since approx. 19th April 2002) Persons who have been granted long term residency in the State after having been legally resident in the State on work permit conditions for over 60 months. Dependant family members of persons granted IBC (Irish Born Child) status Persons granted family reunification Partners of Irish Nationals Persons granted permission to remain under the Turkish Association Agreement Persons on work authorisations (no longer being issued by DETI) Persons granted EU Treaty Rights Persons on fast track scheme (doctors and nurses) Persons who have had five consecutive work permits Green card holders who have worked in the State for 24 months No work permit or business permission required.
HRC Criteria to be examined, and if satisfied, subject to a review of entitlement following expiry of Immigration Stamp or any significant change in circumstances for example, regular or extended absence from the State.

Stamp 4
General Conditions	Categories to whom it applies
Permitted to remain in Ireland until ___________________________.	EEA nationals spouses of EEA/Irish nationals parents of Irish citizens born in the State(who have been granted permission to remain on that basis) persons granted refugee status under the terms of the 1951 Geneva Convention spouse of refugee former asylum seekers granted humanitarian leave to remain refugees here under Government decision (i.e. Bosnians, Kosovans, Vietnamese) Temporary registered doctors (since approx. 19th April 2002) Persons who have been granted long term residency in the State after having been legally resident in the State on work permit conditions for over 60 months. Dependant family members of persons granted IBC (Irish Born Child) status Persons granted family reunification Partners of Irish Nationals Persons granted permission to remain under the Turkish Association Agreement Persons on work authorisations (no longer being issued by DETE) Persons granted EU Treaty Rights Persons on fast track scheme (doctors and nurses) Persons who have had five consecutive work permits Green card holders who have worked in the State for 24 months No work permit or business permission required.
HRC Criteria to be examined, and if satisfied, subject to a review of entitlement following expiry of Immigration Stamp or any significant change in circumstances for example, regular or extended absence from the State.

The following two Stamps are issued solely by Immigration Division, Dept of Justice & Equality, Burgh Quay, Dublin 2

Stamp 5
General Conditions	Categories to whom it applies
The holder of this passport is permitted to remain in Ireland without condition _____________________________________ FOR MINISTER FOR JUSTICE & EQUALITY Date: _________________________	This stamp is given to persons who are entitled to dual citizenship through; birth in Ireland parent(s) born in Ireland grandparent(s) born in Ireland - Foreign Births Register Certificate required from Dept. of Foreign Affairs) naturalisation post nuptial citizenship dual nationality
*HRC Criteria to be examined, as normal.*

Stamp 6
General Conditions	Categories to whom it applies
The holder of this passport is permitted to remain in Ireland without condition as to time _____________________________________ FOR MINISTER FOR JUSTICE & EQUALITY Date: _________________________	This stamp is given to non-EEA nationals who have resided in the State for at least 8 years. The stamp is given based on the individual merits of each case. (E.G. A person who has had stamp number 1 for eight years may get it, his/her spouse who had stamp number 3 would get it also). Study stamps or temporary registered doctors are not considered when determining if a person can get this stamp.
*HRC Criteria to be examined, as normal.*

APPENDIX 8 – EMPLOYMENT PERMIT INFORMATION FOR ROMANIAN AND BULGARIAN NATIONALS

see link for Department of Jobs, Enterprise and Innovation

APPENDIX 9 – GEOGRAPHICAL SECTORS/BREAKDOWN

The countries of the European Union are:

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

The European Economic Area consists of the 27 Member States and Norway, Iceland and Liechtenstein.

Switzerland is technically not in EEA but for the purposes of these guidelines, consider them as EU nationals.

GLOSSARY OF TERMS

Common Travel Area: Ireland is part of the CTA which also includes England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man.

Frontier worker: means an employed or self employed person who works in one country but lives in another and returns there as a rule daily or at least once a week.

A frontier worker who is a posted worker (employed or self employed) retains his/her status as a frontier worker for no more than 4 months after s/he becomes a posted worker (see below) even if s/he is prevented from returning daily or at least once a week to the State in which s/he is habitually resident.

Posted (or seconded) workers: are workers who are sent by their employer to work in another branch of the same Company or for an associated Company in another country for a temporary period. A self employed person can also be a posted worker, when s/he goes to work for a limited period in another country and remains attached to the social security system of the State in which s/he normally works.

Posted workers remain attached to the social security system of the sending State rather than the host State.

There is provision under Irish law for a person, who is posted to work abroad for an Irish employer, to remain subject to Irish PRSI. There is a similar provision for exempting from Irish PRSI for a period of 12 months a worker who is posted to work for an overseas employer in Ireland. Details of these cases can be obtained from PRSI Special Collection Section.

EEC Regulation 883/2004 provides similarly for a person who is sent by his or her employer, who is established in a Member State of the European Economic Area (EEA), to work temporarily for him/her in another EEA country (host State) to remain under the legislation of the sending State for a period not exceeding 24 months.

There is also provision under EEC Regulation 883/2004 for agreements between Member States for exceptions to the provisions relating to the social security legislation that a worker is subject to. These Agreements relate to individual employees and are generally for a period not exceeding 5 years. The workers involved are employed by employers in the European Economic Area. Details of these Agreements are available from PRSI Special Collection Section, Government Buildings, Cork Road, Waterford.

A posted or analogous worker under EEC Regulation 883/2004 will have in his/her possession a portable document No. A1. The bilateral Social Security Agreements between Ireland and Australia, Austria, Canada, Republic of Korea, New Zealand, Quebec, Switzerland, UK (Channel Islands and Isle of Man) and the USA have similar provisions for posted workers. Provision is made for initial postings of 5 years in the agreement with USA, 4 years in the agreement with Australia and 24 months in all the other Agreements. There is provision for extending the postings normally subject to agreement of both countries. Details of workers availing of these provisions are available from PRSI Special Collection Section. (Note: For persons covered by EEC Regulation 883/2004, this Regulation takes precedence over the bilateral Agreement with Austria and Switzerland).

International transport worker: includes a person employed or self employed in international transport services be it rail, road, air, sea or inland waterways e.g. international coach and lorry drivers, pilots and cabin crews on flights originating or terminating outside of Ireland.

Seasonal worker: means an employed person who habitually resides in one country and goes to another country to do work of a seasonal nature for an employer for a period of no more than 8 months and stays in the territory in which s/he works for that period.

Stable employment: means permanent or steady employment i.e. employment of indefinite duration. A number of successive short fixed term contracts do not constitute stable employment.

Third Country Nationals: is used to refer to any person who is not a national of an EU/EEA Member State

Habitual Residence Condition ‑ Guidelines for Deciding Officers on the determination of Habitual Residence

Table of Contents

1. INTRODUCTION

2. The role of deciding officer/ determining officer in HRC & the steps to be followed

3. Circumstances giving exemption from the HRC for Family Benefits and SWA

4. Once and Done – has a previous decision been given?

5. Who does or does not have a right to reside?

6. Can the habitual residence condition be reviewed once it has been satisfied?

7. Who is habitually resident?

1. Introduction

Exceptions

2. The role of deciding officer and determining officer (DO) in HRC

Reviews and Appeals

3. Circumstances giving exemption from the HRC for Family Benefits and Supplementary Welfare Allowance

1. Family Benefits

2. Supplementary Welfare Allowance

4. Once and Done – has a previous decision been given?

5. Who does or does not have a right to reside?

Who has a right to reside?

Who does not have a right to reside?

Provisions regarding right of residence

Sufficient resources and burden on the State

6. Can the habitual residence condition be reviewed once it has been satisfied?

SWA Claims

Family Benefits

7. Who is habitually resident?

The Common Travel Area

Asylum Seekers

The Five Factors

7.1 - Length and Continuity of residence in Ireland or in any other particular country

7.2 - Length and purpose of any absence from Ireland

Returning migrants or Resuming previous residence

Safe-Home Ltd. and returning Irish emigrants

7.3 - Nature and pattern of Employment

Conditions for recognising self-employment

Nationals of Romania and Bulgaria

7.4 - Applicant's main centre of interest

7.5 - Future intentions of applicant

APPENDIX 1 – Additional Information In Relation To Habitual Residence Status Of Specific Categories

(a) Certain Categories Of Non EEA Nationals

Employment Permit Holders

Residence Permits issued subject to "not being a burden on the State"

Short-time Missionary or Voluntary Work

(b) The following categories of people will normally satisfy the HRC:

Persons who have lived all of their life in the State

International Workers

Deportees

(c) Categories where examination of 5 factors may be required:

Refugees

Programme Refugees

Subsidiary Protection

Temporary Leave to Remain

Non-EEA Nationals and visa requirements

Parents of Irish born children

Family Reunification

Periods spent in prison

Jobseekers and others who do not enter the labour force

APPENDIX 2 – EC Regulations For Determining The Place Where A Person Habitually Resides

Elements for determining the place where a person habitually resides

APPENDIX 3 - The Legislation, Including National Law

National Legislation

APPENDIX 4 - Application Of EU Rules To Child Benefit, One Parent Family Payment, Guardian's (Non Contributory) Pension And Domiciliary Care Allowance

Child Benefit

One Parent Family Payment & Guardians Payment (non contributory) and Domiciliary Care Allowance

APPENDIX 5 - Application Of EU Rules To SWA

Application of HRC to EEA workers for SWA purposes

Meaning of Worker in EU law for the purposes of SWA

Habitual residence disallowance for Jobseekers Allowance/One Parent Family Payment – Supplementary Welfare Allowance in payment

APPENDIX 6 - Details Of:-

EEA/EU Nationals Who Have A Right Of Residence,

Dependant Family Members Who Have A Right To Reside,

Family Members Following Death, Departure From State, Divorce Or Annulment

Provisions regarding right of residence

APPENDIX 7 - Endorsement Stamps And Work Visas/Permits

APPENDIX 8 – EMPLOYMENT PERMIT INFORMATION FOR ROMANIAN AND BULGARIAN NATIONALS

APPENDIX 9 – GEOGRAPHICAL SECTORS/BREAKDOWN

GLOSSARY OF TERMS