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

Table of Contents

1. INTRODUCTION

2. LEGISLATION

3. ADMINISTRATION

4. HABITUAL RESIDENCE - National law

5. HABITUAL RESIDENCE - 5 FACTORS

1. 5.1 Length and Continuity of residence in Ireland or in any other particular country
2. 5.2 Length and purpose of any absence from Ireland
3. 5.3 Nature and pattern of Employment
4. 5.4 Applicant's main centre of interest
5. 5.5 Future intentions of applicant

6. APPLICATION OF THE HRC CONDITION TO CERTAIN CATEGORIES

1. 6.1 International workers
2. 6.2 EU MIGRANT WORKERS and JOBSEEKERS
3. 6.3 Certain groups of non EEA Nationals

7. CLAIMS, INVESTIGATION AND DECISION PROCEDURE

APPENDIX 1 - GLOSSARY OF TERMS

APPENDIX 2 - IMMIGRATION STAMPS

The information available in these guidelines is intended as a guide only.

It does not purport to be a legal interpretation of the relevant legislation.

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1. INTRODUCTION

Since 1 May 2004, all applicants regardless of nationality are required to be habitually resident in the State in order to qualify for the following payments:

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

This guideline deals with the principal questions that arise in the course of determining habitual residence. Additional material specific to the respective schemes is contained in the Child Benefit Guidelines and in the Supplementary Welfare Allowance Habitual Residence Guidelines. Other conditions of entitlement also apply to each of the schemes concerned see individual scheme guideline for further information.

2. LEGISLATION

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 - see below.

EEC Regulations 1408/71, 574/72, and 859/2003.
EEC Regulations 1612/68 (Article 7(1) and 7(2)) and Directive 2004/38/EC (Articles 7 and 17) in the case of Supplementary Welfare Allowance;

EC case law: Case 76/76 Di Paolo [1977] ECR 315, Case C 102/91 Knoch [1992] ECR I 4341, Case 39/86 Lair v Universitat Hanover [1992] ECR 3161; Case 375/89 Raulin [1992] ECR 1027; Case C 90/97 Swaddling; and Case C 138/02 Collins.

Decision No. 160 of the Administrative Commission on Social Security for Migrant Workers.

3. ADMINISTRATION

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, an officer of the Health Service Executive who is duly authorised to determine entitlement.

4. HABITUAL RESIDENCE - National law

The habitual residence condition is included in the particular Section listing the conditions of entitlement for each of the relevant schemes.

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

"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 he 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."

Section 30 of the Social Welfare and Pensions Act 2007 added the following to the above:

"(4) Notwithstanding the presumption in subsection (1), a deciding officer or the Executive, 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:

1. the length and continuity of residence in the State or in any other particular country;
2. the length and purpose of any absence from the State;
3. the nature and pattern of the person's employment;
4. the person's main centre of interest, and
5. the future intentions of the person concerned as they appear from all the circumstances."

Section 15 of the Social Welfare and Pensions (No. 2) Act 2009 introduced the following additional provisions to Section 246:

"(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:

1. an Irish citizen under the Irish Nationality and Citizenship Acts 1956 to 2004;
2. 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);
3. a person in respect of whom a declaration within the meaning of section 17 of the Act of 1996 is in force;
4. 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;
5. a programme refugee within the meaning of section 24 of the Act of 1996;
6. a person who has been granted permission to remain in the State under Regulation 4(4) of the Regulations of 2006;
7. 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, Equality and Law Reform;
8. 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, Equality and Law Reform 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:

1. a person who has made an application under section 8 of the Act of 1996 and where the Minister for Justice, Equality and Law Reform 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;
2. 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;
3. a person who has been notified under section 3(3)(a) of the Immigration Act 1999 that the Minister for Justice, Equality and Law Reform 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, Equality and Law Reform has not yet made a decision as to whether a deportation order is to be made in respect of such person;
4. a person who has made an application under section 8 of the Act of 1996 which has been refused by the Minister for Justice, Equality and Law Reform;
5. 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;
6. 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-

1. is given a declaration that he or she is a refugee under section 17 of the Act of 1996,
2. is granted permission to enter and remain in the State under section 18(3)(a) or 18(4)(a) of the Act of 1996,
3. is granted permission to remain in the State under Regulation 4(4) of the Regulations of 2006,
4. 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
5. 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)."

Comments on the legislation

The presumption in Section 246 (1) does not mean that an applicant is automatically considered to be habitually resident in the State because he or she has been here (or in another part of the Common Travel Area) for 2 years or more. The onus is always on applicants to provide sufficient evidence to support their claims for a social welfare payment.

* Ireland is part of the Common Travel Area which also includes England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man. (Note: For the purpose of this guideline, "Ireland" means the Republic of Ireland.)

Also subsection (1) does not mean that an applicant can be automatically considered to be "not habitually resident" because he or she has not resided here for 2 years. In all cases it is imperative to base any such decision on the factors listed in subsection (4) above as habitual residence cannot be determined by reference to a period of time alone - see Part 5 for a fuller treatment of these factors and Part 

for further detail regarding residence in the C.T.A.

Subsections (5) and (7) ensure that persons who are illegally present in the State and those who are in any stage of the asylum process, or similar forms of request for permission to remain, shall not be treated as habitually resident until such permission to remain is granted. People who are within these processes are allowed to be present in the State only for the purpose of having their claim for refugee status (or one of the other forms of leave to remain) determined. A summary of the various categories of persons covered by the above provisions is included in Part 6.3 of these guidelines.

Subsection (6) lists persons who have a right to reside, and who therefore do not fall into the exclusion of subsection (5). The question of whether they are habitually resident (not just legally resident) is determined by the application of the factors listed in subsection (4): see subsection (9) which makes this explicit.

Where a permission to remain has been granted under one of the provisions listed in subsection (8), the person should be treated as habitually resident from the date of that grant, subject to examination of the factors listed in subsection (4), even if (as happens in some cases) the permission is expressed as granted for a certain period of time (e.g. 3 years). Subsection (8) provides that an award of payment will not be back-dated for any period prior to the grant being issued.

The question of habitual residence may, of course, be reviewed at a later date if the person appears to have transferred their centre of interest to another country.

Habitually Resident - summary

In determining whether a person is habitually resident in the State, all relevant evidence is taken into account including the period before the person arrived here, the present period and the future intentions of the applicant as evidenced by his/her actions.

See Part 5 below for a fuller treatment of the principal factors that are taken into consideration.

A person must be habitually resident in the State at the time of making the application for the payments referred to in Part 1 above.

Applicants who are not habitually resident in Ireland are not entitled to the payments concerned, unless exempted under the provisions of EU Regulations governing the entitlements of EU migrant workers - see section 6.2 below.

An applicant who satisfies the habitual residence condition must, of course, also satisfy the other conditions of entitlement, in order to receive the payment claimed.

Consistency in decision-making

In making a determination on Habitual Residence, Deciding Officers should have regard to any previous HRC determinations issued in respect of the same applicant if other claims for assistance payments or child benefit have already been allowed or refused.

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 HRC status in relation to subsequent claims, e.g. on return after a period of absence from the State - see paragraph 5.2 below. The deciding officer should therefore establish whether the same factors continue to apply, and full account must be taken of the latest relevant evidence and information.

Where a deciding officer proposes to make a decision on HRC which is different to a previous HRC decision in respect of the same person, both deciding officers should consult so as to ensure a consistent interpretation of the applicant's HRC status.

The deciding officer should also be alert to the situations where EU Regulations exempt a person from satisfying HRC for the particular payment claimed: e.g. in regard to Family Benefits for EU migrant workers - as outlined in Section 6.2 below.

5. HABITUAL RESIDENCE - 5 FACTORS

The term "habitually resident" is not defined in either Irish or EC law, but it is intended to convey a degree of permanence evidenced by a regular physical presence enduring for some time, beginning at a date usually in the past and intended to continue 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.

The term habitual residence is similarly used in EEC Social Security coordinating Regulations 1408/71 and 574/72 and is used to define the meaning of "residence": i.e. "residence" means "habitual residence".

Section 246 (4) of the Social Welfare Consolidation Act 2005, quoted in Part 4 above, 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 ECJ references are listed in Part 2 above.

The subsection also reflects the Court's emphasis that 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. No single aspect is consistently likely to be the most important factor though some may be more persuasive in certain circumstances than in others.

No single factor is conclusive. 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.

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 intentions of applicant as they appear from all the circumstances.

Residence may change from temporary to habitual at a particular point in time.

On the one hand, the fact that a person has achieved habitual residence does not mean that the residence was habitual from the outset.

On the other hand, subsequent conduct may act as confirmation of an applicant's stated intention and help to show that those intentions were settled from the outset.

The following check lists of questions or factors which will need to be considered are not exhaustive. Further enquiries may be needed. The circumstances of each case will dictate what information is needed, and it is vital that all relevant factors are taken into account.

The following is an explanation of each of the factors:

5.1 - 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. An applicant who has a home or close family in another country would normally retain habitual residence in that country (see Paragraph 5.4).

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

Bearing in mind the presumption clause in Section 246 (see Part 4), and the reciprocal arrangements with the UK concerning the *Common Travel Area (CTA), for the purpose of this factor periods of residence within the CTA immediately prior to moving to live in Ireland should be treated the same as periods of residence in Ireland. This arrangement applies only to UK citizens and EEA nationals who had retained their centre of interest within the Common Travel Area during these periods.

* Ireland is part of the Common Travel Area which also includes England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man.The CTA agreement means that there are no legal barriers to a UK citizen who wishes to transfer their residence, temporarily or permanently, to Ireland, but all the HRC criteria should be examined in the usual way to determine whether the person has actually transferred their habitual residence to this State.

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 Paragraphs 5.3 and 6.1);
• to seek employment (rather than to take up an actual job offer).

On the other hand, a short stay in Ireland does not automatically prove that an applicant has maintained his/her habitual residence 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 5.2, 5.4 and 5.5).

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.

Right to reside

Subsections (5) to (8) of Section 246 were inserted into the Social Welfare Consolidation Act 2005 in December 2009 to put beyond doubt that residence, for the purpose of this HRC factor, means residence in accordance with a legal right to reside, not mere presence only.

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 2) and a Certification of Registration issued by the Garda National Immigration Bureau (i.e. a GNIB card).

A person who has entered the country illegally cannot be deemed to be resident for any period prior to obtaining a right to reside, and a person whose application to remain has been refused cannot be deemed to be resident unless such a refusal is revoked.

See further information in Section 6.2 below regarding the provisions which apply in the case of EEA nationals and in Section 6.3 below regarding various categories of non-EEA nationals. UK citizens also have a right to reside in Ireland under the Common Travel Area agreement, in addition to their rights under the EU provisions.

5.2 - 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-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 (see Paragraph 6.2 below) is lost when such a person leaves the country.

Infrequent return visits or the purchase of a home abroad may point to transfer of habitual residence. 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 habitual residence in Ireland has not been lost. (See also Part 6.1 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.)

Resuming previous residence

A person who had previously been habitually resident in the State or within the Common Travel Area and who moved to live and work in another country and then resumes his/her permanent residence in the State may be regarded as being habitually resident immediately on his/her return to the State.

In determining habitual residence in such cases the deciding officer 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
• 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.

Example:

An Irish national resided and worked in Ireland before moving to the Netherlands to work and live for a number of years. He lost his job in the Netherlands and, having failed to find alternative work there after 3 months, decided to return to his family in Ireland. On his return he applied for Jobseeker's Allowance and satisfied the Deciding Officer that his future intention was to find new employment and remain in Ireland. He was considered as resuming his previous habitual residence.

Replies to the following questions may assist in determining whether an applicant (including an Irish national) has retained or resumed his or her habitual residence 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/ 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.

5.3 - 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 lawfully in stable employment may be presumed to be habitually resident here unless there are particular circumstances to rebut this presumption. Where such a person's family has been given permission to reside with them and the person is in that employment for at least a month or in self-employment for at least 6 months, the person may normally be presumed to satisfy HRC. (But see other comments in paragraph 5.5 re 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 paragraph 6.1?
• 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?

5.4 - 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.

Consideration of a person's main centre of interest is an important factor in determining 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.

People who are working here but have no particular ties with Ireland may be considered to have retained their centre of interest in another country.

On the other hand, a person who previously lived in another country or countries may now have moved to Ireland on a permanent basis and established a main centre of interest here. For example, a person who has retired from missionary or other service abroad and has chosen to resettle in Ireland should be considered to have his/her main centre of interest here.

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/children etc.),
• 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

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?

5.5 - Future intentions of applicant

A stated intention to reside in Ireland for the foreseeable future does not, of itself, mean that habitual residence 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 2 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?

Conditions for recognising self-employment

For the purpose of Habitual Residence, self-employment can be recognised as a viable proposition only if

1. the self-employment business has been registered with the Revenue Commissioners and proof of such registration is supplied
2. the self-employment business is bona fide, 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.

Any questions arising in regard to (b) may be ascertained 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 for a decision as to whether a person is employed or self-employed.

Note:
Romanian or Bulgarian nationals may engage in self-employment in the State from 1st January 2007but are not permitted to engage in insurable employment within the State unless

1. they do so in accordance with an employment permit
2. they were working in Ireland at the date of accession (1 January 2007) in accordance with an employment permit which was valid for at least 12 months
3. they were working in Ireland at the date of accession (1 January 2007) in accordance with Immigration Stamp No. 4 for at least 12 months.

6. APPLICATION OF THE HRC CONDITION TO CERTAIN CATEGORIES

6.1 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 habitual residence here:

• posted (or seconded) workers;
• frontier workers;
• those working on vessels 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.

6.2 EU MIGRANT WORKERS and JOBSEEKERS

A Deciding Officer must have due regard to EC law where it is applicable. In general EC law takes precedence over national law.

An EU national or a family member of an EU national who has resided legally in Ireland for 5 years or more has 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.

In certain circumstances an EU national and their family members may be granted the right to permanent residence following a shorter period than 5 years (e.g. retirement on pension, or permanent invalidity). The relevant legislation is referred to in subsection (6)(b) of Section 246 of the Social Welfare Consolidation Act 2005). In any case of doubt, their status should be confirmed with the Department of Justice, Equality and Law Reform.

The right of residence for any EU national and members of their family does not mean that they automatically satisfy the habitual residence condition. In considering the 5 factors in such cases, due weight must be accorded to this right.

In relation to EU nationals who have resided in the State for less than 5 years, and who are not habitually resident, different provisions may apply according to the person's circumstances and the type of claim, as follows:-

Family Benefits:

Child Benefit is classified under EC law as a Family Benefit. One Parent Family Payment and Guardian's Payment (Non Contributory) are also classified as Family Benefits with effect from 5 May 2005 (Regulations 1408/71 and 574/72 as amended by 647/2005).

Family Benefits are payable to a person who qualifies for EU migrant worker status in respect of dependents who are either habitually resident in Ireland or habitually resident in another EEA State.

Therefore

(a) any EEA citizen who is currently employed or self-employed here or in receipt of Irish Jobseeker's Benefit, does not have to satisfy the habitual residence condition in order to receive one of these Family Benefit payments. (Note: Payment of Jobseeker's Benefit exported from another country is not included for this purpose)

(b) 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 habitual residence condition 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 EU State may be proven by the applicant obtaining confirmation of children's attendance at local schools, spouse's employment record or payment of local authority utility bills etc. in that State.

Entitlement to EU Family Benefits, once established continues where the person becomes unemployed and is in receipt of Irish Jobseeker's Benefit. Periods in which Illness Benefit, Occupational Injury Benefit or Maternity Benefit are paid do not change the status of worker for this purpose where the underlying contract of employment has not been terminated.

The amount of Family Benefits payable by the Department of Social and Family Affairs will depend on whether there is entitlement to Family Benefits from another EEA State in respect of the same child(ren).

Supplementary Welfare Allowance

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) provides that a migrant EEA worker shall enjoy the same social advantages as national workers, and a judgement of the European Court of Justice has ruled that this includes social benefits guaranteeing the minimum means of subsistence (which in Ireland means SWA).

There are detailed rules as to who is to be treated as a worker for the purposes of this Regulation. Those workers include persons who have been engaged in genuine and effective employment but who are presently in other specified circumstances.

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 HRC for the purpose of any claim to Supplementary Welfare Allowance. A person who has retained his or her "worker" status in accordance with Regulation 1612/68 as amended by Directive 2004/38 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 condition for Jobseeker's Allowance, One parent Family Payment, or one of the other payments subject to HRC. 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.

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 HRC factors set out in Section 5 should be examined in each case.

For further information on any of the above categories, see the relevant sections in the Guidelines relating to Child Benefit, One-Parent Family Payment, Guardian's Payment (non-contributory), Supplementary Welfare Allowance and the Overview of EU Social Security Regulations.

6.3 Certain groups of non EEA Nationals

A list of the various types of immigration stamps issued by the Department of Justice, Equality and Law Reform is attached in Appendix 2 along with a general advice as to how the Habitual Residence condition should apply in each case.

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

Asylum seekers

An asylum seeker is a person who has applied to the Minister for Justice, Equality and Law Reform 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 provides that such a person shall not be regarded as habitually resident. The same subsection also excludes those whose application has been refused and those who are subject to a deportation order.

Unlawful Residence

Section 246 (5) also states that anyone who does not have a legal right of residence in the State shall not be regarded as habitually resident. This includes:

1. persons who have entered the country illegally i.e. without the necessary visa or permission to enter the State,
2. persons who entered the country on a visitor's 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);
3. persons who initially held an employment/residence permit but who have deliberately failed to renew the permit(s) in question.

A deliberate failure to renew a permit would be indicated if 3 months or more had elapsed since they should have obtained or renewed their residence or employment permit and where no application has been made to renew the permit within that period. In such cases a claim may be disallowed on HRC grounds, or payment suspended on an existing entitlement pending the application being submitted. Where a claimant has made application to renew a residence permit within 3 months of the expiry date of a previous residence permit, and all of the other relevant HRC criteria are satisfied, habitual residence may be approved on an interim basis pending renewal of the permit. In such cases the claim should be reviewed after a further 3 months in order to confirm whether the required permit has in fact been granted, and in any case where a residence permit has been refused, or a deportation order has been issued, the claim may then be disallowed on grounds of not satisfying the habitual residence condition. Where an application to renew a residence permit has not yet been decided within 3 months, the claim should be scheduled for a later review date.

A deliberate failure to apply for renewal would also be indicated where a significant change of circumstances is evident, indicating that the grounds on which a previous residence permit was issued no longer apply, e.g. where a person who obtained entry with a Stamp 3 residence permit on family re-unification grounds has separated from the spouse who holds the work permit. In such cases, the claim should not be decided in favour of the claimant until a renewed residence permit has been obtained.

Refugees

Refugees are people who have been granted Refugee status by the Minister for Justice, Equality and Law Reform (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, political opinion or membership of a social group. People granted refugee status by the Minister for Justice, Equality and Law Reform are always granted permission to remain in the State on Stamp 4 (issued by the Irish Naturalisation and Immigration Service, an executive office of the D/JELR).

Those granted refugee status in Ireland should be treated as habitually resident from the date of grant of that status provided they have lived continuously in the State since then. 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 5 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.

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, Equality and Law Reform 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 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 application has been refused.

Temporary Leave to Remain

The Minister for Justice, Equality and Law Reform 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 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 HRC criteria may be warranted 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. In all cases, the position should be reviewed if there is any change in the person's circumstances, e.g. a prolonged absence from the State, or the permission is revoked.

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 HRC criteria in any case of doubt. The position should be reviewed if there is any change in the person's circumstances, such as frequent or prolonged absence from the State.

Employment Permit Holders

Applications from Employment Permit Holders should be examined in detail having regard to the five factors set out in Part 5 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 following 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. The position should be reviewed if there is any change in the person's circumstances.

Family Reunification

Permission to remain in Ireland may be granted to dependants (a spouse 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, Equality and Law Reform 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, Trade and Employment if they wish to work in the State. The resident spouses 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. The position should be reviewed if there is any change in their circumstances.

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, Equality and Law Reform 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, Jobseeker's Allowance, One-Parent Family Payment) would be. On receipt of a claim in such a case, the Department of Justice, Equality and Law Reform should be consulted and their opinion obtained as to whether the person has invalidated his or her right to reside in Ireland.

7. CLAIMS, INVESTIGATION AND DECISION PROCEDURE

The Habitual Residence Condition is an additional condition to be satisfied along with the other conditions of entitlement for the payments concerned. A determination on an application should have regard to whether all conditions of a scheme are met.

In most cases it is possible to determine whether a person satisfies the habitual residence condition without recourse to detailed examination, for example, a person who has never been abroad other than for brief (e.g. holiday) periods. In cases which require detailed examination, the applicant should be asked to complete FORM HRC 1 in addition to the claim form for the relevant payment.

The initial decision/determination on a claim is considered on the basis of the position from the date of claim to the date of decision/determination. If an applicant appeals against an adverse initial decision/determination, the Social Welfare Appeals Officer or the Health Service Executive Appeals Officer considers the position from the date of claim to the date of the appeal decision. 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/Officer of the Health Service Executive should consider any new or additional evidence provided and decide whether a revised decision/determination in favour of the applicant is warranted.

APPENDIX 1 - GLOSSARY OF TERMS

Common Travel Area: Ireland is part of the Common Travel Area 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 for a period of 12 months. 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 1408/71 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 normally not exceeding 12 months. This period can in certain circumstances be extended by up to 12 months where owing to unforeseeable circumstances the work s/he was sent to do extends beyond the duration originally anticipated.

There is also provision under EEC Regulation 1408/71 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 1408/71 will have a form E101 or E102 (where the posting has been extended).

The bilateral Social Security Agreements between Ireland and Australia, Austria, Canada, New Zealand, Quebec, Switzerland 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 1408/71, 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.

EEA Countries: The following are the Member States of the European Economic Area (EEA):

Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, Switzerland (not a member of the EEA but the EEC Regulation applies), United Kingdom of Great Britain & Northern Ireland (excluding Isle of Man & Channel Islands).

APPENDIX 2.

Guidelines on the application of HRC criteria to holders of main Immigration Stamps as currently used by the Department of Justice, Equality and Law Reform. The Immigration Stamps are not an interpretation of legal entitlements. The Department of Justice, Equality and Law Reform 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 that Department and that Department 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 & Law Reform 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 Equality and Law Reform	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 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 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 & Law Reform, 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 & LAW REFORM 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 & LAW REFORM 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.