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Examples below indicate useful scenario situations on HRC applications but should not be treated as a comprehensive list of all possible scenarios and there will be many situations which will not fit one of these examples.

Contents:

Examples of cases where recipients of SW may be subject to HRC for other Schemes.

Cases where the key issue is right to reside � non-EU nationals.

Cases where the key issue is right to reside � EU nationals.

Centre of interest � returning Irish nationals.

Burden on the State.

Close Family Abroad.

Insufficient Evidence


Examples where recipients of CB, SWA, or OFP may be subject to HRC for other Schemes.

1. An EU national, single, came to Ireland and obtained 5 weeks full-time work on arrival. S/he was subsequently let go and has claimed Jobseeker's Assistance (JA) and SWA.

Under EU rules SWA is payable, subject to him registering as unemployed with the Department of Social Protection and F�S and applying within 6 months from the date of last employment. HRC may only be tested at the date of application.

JB should be assessed as they may have a combined contribution entitlement, JA claim is subject to meeting HRC.

2. An EU national arrived in Ireland a year ago and obtained employment. His wife and children followed 3 months later. CB was awarded. After some months he was laid off and applied for JA while his Jobseeker's Benefit (JB) entitlement was being examined.

The entitlement to CB continues under EU rules.

He would also be entitled to SWA under EU rules as above case, without needing to satisfy the HRC.

JB should be assessed. JA claim is subject to meeting HRC.

3. An EU national was working in Ireland for 15 months. She gave up employment following the birth of her child and received Maternity Benefit on an aggregate German and Irish record. She claimed CB, and when her Maternity Benefit expired, claimed OFP. She was in receipt of these under EU rules.

She subsequently surrendered her OFP when her partner started living with her and she claimed Disability Allowance. Any award of DA is subject to her meeting the normal HRC examination.


Cases where the key issue is right to reside � non-EU nationals

4. Asylum seeker.

A non EEA national arrived in Ireland in January 2010 seeking asylum.

The legislation states that a person at any stage of the asylum process may not be regarded as habitually resident.

He was subsequently granted refugee status in August 2010 and has lived here continuously since then. The evidence produced to support this included a valid Stamp 4 (GNIB card) together with letter of status from Department of Justice & Equality (DJE).

On the basis of this evidence he would satisfy HRC.

5. Loss of Refugee status.
A non EEA national was granted refugee status 4 years ago. However he left Ireland in 2010 and returned to Somalia for 6 months. His stamp 4 visa has been cancelled. He has been allowed to re-apply for asylum, and a decision on this is pending.

He cannot be regarded as meeting HRC as he is again in the asylum process.

6. Irish-born child
A non EEA national has applied for habitual residence status as the mother of an Irish-born child. She does not satisfy HRC (no right to reside) until she has been granted permission to remain by the Department of Justice & Equality.

If permission to remain is granted, then she satisfies HRC as long as she holds a current stamp 4 visa.

7. Family reunification
A person has been granted refugee status. His wife has arrived in the state, and has a current stamp 4 visa with a letter from DJE proving her status.

This person satisfies HRC as long as she holds a current stamp 4 visa.

8. Visa and work permit expired:
An non EEA national arrived in Ireland 4 years ago and has lived here since apart from brief holidays abroad. He is married, his spouse lives with him and their 3 dependent children who are all in school here. His work permit and visa both expired 1 year ago and have not been renewed.

As this person does not have a legal right to reside in the state he cannot meet HRC.

9. A non EEA national came to Ireland in 2006 from the Republic of Benin.
She is the mother of an Irish born child born whose father is an Irish national.

She had lived in a hostel in Dublin and at various other addresses. The is currently in accommodation with her sister. Her sister came to Ireland in April 2007 and is also in the asylum process. She and her sister do not receive any welfare.

The child's father funds her/ their share of the rent and general living expenses but the evidence was unclear on this.

The child's father lives elsewhere.

She failed to attend her asylum hearing and was refused. Her current status is of a person permitted to remain in the State solely for the purpose of determining her application to remain. She is not permitted to work. She has never been self sustaining or established a viable existence. She has no previous association with Ireland.

She claimed that Ireland is her centre of interest and it is her intention to remain.

HRC not satisfied as she is not cohabiting and the arrangement does not constitute a family unit in the commonly accepted sense of the term and accordingly his status as an Irish national, resident in Ireland and his employment record could not be considered.

10. A non EEA national arrived in Ireland 8 months ago having lived in Morocco and Turkey since birth. He was accompanied by his wife who acquired Irish citizenship by parental links with Ireland. She had never lived in Ireland before this and has no established links with her parent's family members here.

He has a STAMP 4, granted to him as the spouse of an Irish national. He worked here for 4 months but is now seeking employment. He retains bank accounts in Morocco and Turkey. He does not own any property in any country.

HRC is not satisfied in this case. The duration of his residence and employment in Ireland is insufficient to prove his centre of interest is now here, given that he has lived most of his life outside Ireland, has no established links or family ties with Ireland. He retains links abroad by way of retention of financial accounts.


Cases where the key issue is right to reside � EU nationals

11. An EU national living in Ireland over 4 years, and is a partner of an EU national who is also here over 4 years who is self employed and has a right to reside. They have a child and are in receipt of CB. She worked for a number of weeks and has applied for Jobseeker's Allowance.

EU Nationals & Family Members - SI No 656/2006 EC Regulations 2006
Family members of EEA nationals have a right to reside provided the EEA national has such a right.

HRC satisfied.

12. Romanian national came to Ireland with her husband and children in June 2002 and they are now separated. She was in receipt of child benefit from July 2002 until October 2004 when she returned to Romania. She returned to Ireland and made a further claim for OFP. She confirmed she had never been employed in Ireland due to family responsibilities as she has 4 children. There was no record of her husband having worked. The family never established a viable existence without recourse to welfare. In addition, no evidence was produced she had a work permit to allow her take up employment in Ireland.

HRC not satisfied.

Please note that with effect from 1st January 2012 Bulgarian and Romanian Nationals no longer require a work permit in order to secure employment in Ireland. See HRC Guidelines.


Centre of interest � returning Irish nationals

13. A student completed a 3rd level course in England, and then served 1 year in India with a voluntary aid agency and has now returned to Ireland to seek employment. She has claimed JA. She is living with her family who had supported her through college and during the voluntary work.

Periods of study abroad do not necessarily establish a centre of interest there. Similarly, the voluntary work was short term and for a defined period. She satisfies HRC as Ireland remains her centre of interest. It should be verified that the initial course of study has indeed been completed.

14. An Irish national has lived in the U.K. for the last 35 years. He is separated and has no ongoing contact with his family there. A charitable organisation has arranged for his return to live in Ireland close to where his 2 brothers still live. He has provided evidence of termination of rented accommodation and UK social assistance. He has now claimed non-contributory State pension.

His centre of interest is now Ireland as he has terminated his rented accommodation and social assistance in the U.K.

15. An Irish national returned to Ireland 2 weeks ago because he lost employment abroad. He is seeking further work abroad, rather than in Ireland. He had lived in Ireland from birth until he completed college in 2001. Since then he has travelled and worked or been a self-employed musician in various countries (France, Australia, and Italy) with short periods of return to Ireland. When he was last in Ireland in January 2004, he claimed unemployment payments and SWA. He has never worked in Ireland and is not interested in working here now. He is unclear as to how long he intends to stay here. He is single, and his parents and siblings live in Ireland.

In this case, as claimant works outside Ireland and only returns intermittently, HRC is not satisfied.

16. An Irish national returned to Ireland 1 week ago, and claimed JA. He had lived in Ireland from birth to 2006 when he went to USA on a visitor's visa. He has now been deported from the USA as an illegal alien. He is unsure of how long he will stay, but hopes to get employment although he has had no previous employment in Ireland. He is single, and his mother and 2 sisters live in Ireland. He is living with a friend. He has provided his deportation papers with his claim.

This person satisfies HRC. As the applicant has been deported from the USA, he cannot return there for at least the period of his exclusion (usually 5 to 10 years). His centre of interest is Ireland.

17. An Irish national was brought up in West Donegal. After completing her education she found work in Derry, and rented a flat there. She has now lost employment after 9 months and has returned to her parents' home in Donegal. She is claiming JA after exhausting her entitlement to UK benefit. She is seeking employment locally or anywhere in Ireland or UK.

HRC is satisfied. Her centre of interest moved to Derry only because of finding employment there. The loss of employment and her decision to base herself at home until new employment is found indicates that her centre of interest is presently again in Donegal.

18. An Irish missionary worker is on temporary home leave. She is carrying out missionary work in Haiti but has returned to Ireland for 6 months leave. She intends to return to Haiti to resume missionary work there after this time.

She does not satisfy HRC, as her intention to remain here is short-term.

19. After serving 35 years in Korea an Irish missionary is retiring to his missionary head quarters here. He has claimed State Pension non-contributory.

He satisfies HRC on settling here.

Please note that with effect from 1st January 2012 Bulgarian and Romanian Nationals no longer require a work permit in order to secure employment in Ireland. See HRC Guidelines .


Centre of interest EU nationals or family members

20. A Latvian national arrived in Ireland during the summer accompanied by her 2 children, to join her husband who has been in steady employment here for the previous 6 months. Her children commenced school in September. Their stated intention is to remain here permanently. She is claiming CB.

In this case HRC is satisfied: Her husband's stable employment in Ireland and intention to remain indicates he is habitually resident and she would have the same status as her spouse on arrival given her intention also to remain here.

NOTE: The same arguments for satisfying HRC would apply if she was claiming JA, even if the couple had no children.

21. A Romanian national came here with her parents in 2004. Her father has a work permit, and employment record confirms constant work. She completed her education in Ireland but has never worked here. She has a child here and has claimed OFP. Her stated intention is to stay here indefinitely.

She satisfies HRC as her strong family ties signposts her case to the other HRC factors.


Burden on the State

22. DA application where the GNIB card & letter from Dept. of Justice and Equality states one of the conditions of the temporary permission to remain in the State is that applicant "will engage in employment and not become a burden on the State".

The DJE letter states that the temporary permission to remain in the State may be revoked if person does not comply with the conditions set out in the letter.

In this case
a) Can the DO stop current SWA payment as client is not complying with the conditions as laid out by DJE?
b) on the new application for DA, and if the client has temporary permission to remain so long as they do not become a burden on the State, can the DO refuse on HRC grounds on this point alone?

Regarding the question of whether the HRC can be reviewed once it has been deemed satisfied on SWA.

The legislation provides that the HRC is applied at the date of claim. The Act does not provide that it is a continuing condition of entitlement for any of the schemes for which the condition applies.

Burden on the State:
Certain permissions to remain in the State issued by the DJE specify that the holder must not become a burden on the State. The receipt of CB 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 J.A.) could.

On receipt of a claim in such a case, the DJE should be consulted and their opinion obtained as to whether the person has invalidated his or her right to reside in Ireland.

23. A non-EEA national made a claim for DA on reaching 16 years. Prior to that, the mother had been in receipt of DCA. The mother came to live and work in Ireland in 2003 and was granted a Stamp 4 visa. The following year, she was joined by her husband and two daughters, one of whom is now claiming DA. As she was still a minor, the DA claimants name was added to her mother's visa. On reaching age 16 years, she was required to apply for her own visa; she did so and was granted a Stamp 2A as she was still at school.

Both parents are in employment and the mother was granted long-term residency. n this case as the applicant is 16 years old, an employment record in the State would not apply. The DA claimant has been resident in the State for over 5 years and her mother had been in receipt of DCA.

The residence status is relevant in establishing that she has a right to reside in the State and, that the question as to habitual residence may be determined.

In view of the duration and continuity of residence and an established centre of interest in the State, the person meets the habitual residence condition.

24. A Polish national came to Ireland in 2001 and remained here until September 2008 at which time she transferred to Poland on JB for a maximum of 78 days. She returned before the expiration. She subsequently claimed Jobseeker's Allowance. Her 15 year old son resides in Poland.

If the person concerned returns to the competent State before the expiry of the period during which he is entitled to benefits, they shall continue to be entitled to benefits under the legislation of that State.

HRC is satisfied.


Close Family Abroad

25. Irish national had lived in Ireland until 20 years of age when she went to UK. She returned to Ireland with her 6 year old daughter in September 2009. Family had bought a house in Ireland some years previously to facilitate this move back and opened a bank account. Her daughter attends school here.

She had worked in the UK and is actively seeking work here now.

All of her extended family lived in Ireland. She had a good job in UK for a number of years. Family have decided to move here permanently. She lives near her parents and her husband remains employed in UK. He will join her if he can secure employment here. They still have an outstanding mortgage on their house in UK. She is supported financially by her husband.

HRC satisfied.

26. Polish national's claims J.A.. His wife and daughters live in Poland. He is living here for 10 years and has a very good employment record with substantial insurance contributions recorded at the time of his claim for J.A. He has lived at the same address and does not own property abroad. His wife lives with her parents in Poland. It is his stated intention that his wife would join him when their daughter finishes college, and that the Irish Naturalisation and Immigration Service (INIS) has certified that he is entitled to remain permanently in the State (certificate issued and verified).

In view of the length and continuity of residence and the nature and pattern of his employment in the State, he would be deemed to meet the HRC for J.A.

In the circumstances, HRC satisfied.

27. A French national who has always worked and lived in France arrived in Ireland 1 month ago on a visit. She is now considering staying for a while if she gets employment. All of her family live in France and she has no bank accounts or property in Ireland or abroad.

In this case, HRC is not satisfied. She has been in Ireland for a very short while, she has no employment or any definite employment prospects, and she has no links or family ties here. These demonstrate that her centre of interest is not Ireland.


Insufficient Evidence:

28. A Latvian national is 29 years old and single. His parents and brother live in Latvia. He came to Ireland in June 2007 to work and has lived with his brother since coming to Ireland.

It appeared that he has lived and worked elsewhere but no details were provided on form HRC1. He planned to support himself in Ireland by finding work but did not arrange employment prior to coming to Ireland. He started working in Ireland in 2008 and worked for some weeks until 2009 when his employment contract finished.

However there was no evidence of employment, presence in Ireland or means of support in Ireland outside of this period of employment. He made a claim to J.A. in May 2010. He claims that his brother is supporting him while he seeks work in Ireland.

The Claimant provided insufficient evidence towards his JA Claim. Based on all the evidence HRC is not satisfied.

Last modified:24/07/2012
 

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