Social Welfare and the Habitual Residence Condition

Recently, we have had a number of queries regarding the Habitual Residence Condition (HRC) that is required to be satisfied to receive social welfare in the State. “Habitual Residence” is a vague term and is not explicitly defined in the legislation. Essentially, social welfare applicants are required to prove that they are residing in Ireland and have a “close link” to the State.

Firstly, applicants must satisfy the deciding officer of the Department of Social Welfare that they have a right to reside in Ireland. A person who does not have the right to reside in the State will not satisfy the HRC.  Five factors are then considered in determining whether an applicant satisfies the HRC. These factors are:

1.      The length and continuity of living in the State or another country;

Previously, there was a minimum residency requirement of two years. Officially, this has been abolished. However, in practice it seems that many of the deciding officers are continuing to unofficially apply the two year residency rule. It is proving difficult for applicants with a shorter length of residency to satisfy the condition. However, applicants with residency of a year to 18 months have been successful in satisfying the HRC. Therefore, applicants with a residency of less than two years should not be deterred from applying, however the remaining four factors may need to be argued more strongly to be successful.

2.      The length and reasons for any absence from the State;

Holidays or short periods outside the State will not necessarily render an applicant non-habitually resident. However, a more permanent move, particularly if stable employment is engaged or a home is purchased, is more likely to lead to the loss of habitual residence.

3.      The nature and pattern of the person’s employment;

Evidence of stable employment of the applicant is very relevant to the HRC, and in some cases can produce a presumption that the applicant is habitually resident in the State. According to the Guidelines for Deciding Officers, as produced by the Department of Social Protection, if a person is in stable employment for one month and this employment is continuing, or is in self-employment for six months and this is stable and continuing, this applicant is likely to satisfy the HRC. However, this  is in addition to the requirement of “an appreciable period” of residency.

4.      The person’s main centre of interest;

Ireland must be the applicant’s main centre of interest. That is, the applicant must have a material connection to the State which the intend will be for the foreseeable future. Property ownership, familial ties in the State, associations with social or professional bodies and any evidence of a settled residence in the State will all be considered.

5.      The future intentions of the person applying for the social welfare scheme

The applicant’s initial reason for coming to the State will be considered in addition to any evidence of a settled intention to reside in the State for the foreseeable future. If the applicant initially came to the State without an intention to reside into the future but this intention has since changed, there must be significant evidence of this change in the actions of the applicant. For example, purchasing a property would suggest an intention to reside in the State on a more permanent basis.

Furthermore, since 2014, a social welfare applicant must remain habitually resident throughout the application process in addition to being habitually resident at the time of the application. Previously, the latter was sufficient.

The HRC is required for most social welfare payments however there are exceptions. In certain circumstances EU law overrides national law. Under EU law, the HRC does not apply to family benefits or Supplementary Welfare Allowance for EU migrant workers. This is the case whether the worker’s dependents are resident in Ireland or in another Member State. Family benefits include Child Benefit, One Parent Family Payment, Domiciliary Care Payment and Back to Work Family Dividend.

BROPHY SOLICITORS IMMIGRATION TEAM

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