http___www.welfare.ie_ga_Pages_Habitual-Residence-Condition_holder.aspx_1.xml
1.1 2.1 3.1 4.1 5.1 6.1 7.1 8.1 9.1 10.1 11.1 12.1 13.1 15.1 16.1 17.1 18.1 19.1 20.1 21.1 22.1 23.1 24.1 25.1 26.1 27.1 28.1 29.1 30.1 31.1 32.1 33.1 34.1 35.1 35.2 36.1 36.2 37.1 38.1 38.2 39.1 40.1 41.1 42.1 43.1 44.1 45.1 46.1 47.1 48.1 49.1 50.1 51.1 52.1 53.1 54.1 54.2 55.1 55.2 55.3 56.1 57.1 58.1 58.2 59.1 59.2 59.3 59.4 60.1 61.1 61.2 61.3 62.1 62.2 64.1 65.1 66.1 67.1 67.2 68.1 68.2 68.3 69.1 70.1 71.1 72.1 73.1 74.1 75.1 75.2 75.3 75.4 75.5 75.6 76.1 77.1 77.2 77.3 77.4 78.1 79.1 79.2 80.1 81.1 82.1 82.2 83.1 83.2 83.3 84.1 84.2 85.1 86.1 87.1 87.2 88.1 89.1 90.1 91.1 92.1 93.1 94.1 95.1 96.1 97.1 98.1 99.1 100.1 101.1 102.1 103.1 104.1 105.1 106.1 107.1 109.1 110.1 111.1 111.2 112.1 113.1 114.1 114.2 115.1 116.1 118.1 118.2 119.1 120.1 120.2 121.1 121.2 121.3 122.1 122.2 123.1 124.1 124.2 125.1 126.1 126.2 126.3 127.1 128.1 128.2 129.1 130.1 130.2 131.1 132.1 134.1 135.1 136.1 137.1 137.2 137.3 138.1 139.1 140.1 141.1 142.1 142.2 143.1 144.1 145.1 145.2 146.1 147.1 148.1 149.1 149.2 150.1 151.1 152.1 153.1 154.1 154.2 155.1 156.1 157.1 157.2 158.1 159.1 160.1 161.1 162.1 163.1 164.1 165.1 166.1 167.1 167.2 168.1 169.1 169.2 170.1 170.2 170.3 170.4 171.1 172.1 175.1 176.1 177.1 178.1 179.1 180.1 181.1 182.1 182.2 183.1 183.2 184.1 185.1 186.1 187.1 189.1 190.1 190.2 191.1 192.1 193.1 194.1 195.1 196.1 197.1 198.1 199.1 200.1 201.1 202.1 203.1 204.1 205.1 206.1 207.1 208.1 209.1 210.1 210.2 211.1 212.1 213.1 214.1 215.1 216.1 217.1 218.1 218.2 218.3 218.4 219.1 220.1 221.1 222.1 223.1 224.1 224.2 225.1 225.2 226.1 227.1 228.1 229.1 230.1 231.1 231.2 232.1 232.2 233.1 234.1 235.1 235.2 236.1 237.1 238.1 238.2 239.1 240.1 241.1 241.2 241.3 242.1 242.2 243.1 244.1 245.1 246.1 247.1 248.1 249.1 250.1 251.1 252.1 252.2 253.1 254.1 255.1 256.1 257.1 258.1 258.2 259.1 259.2 259.3 260.1 260.2 260.3 260.4 260.5 260.6 261.1 262.1 263.1 263.2 263.3 264.1 265.1 265.2 266.1 267.1 268.1 269.1 270.1 271.1 272.1 273.1 273.2 274.1 275.1 276.1 277.1 278.1 279.1 280.1 281.1 282.1 283.1 284.1 284.2 284.3 285.1 285.2 285.3 285.4 286.1 287.1 288.1 289.1 290.1 291.1 292.1 293.1 294.1 295.1 296.1 297.1 298.1 299.1 300.1 301.1 302.1 303.1 304.1 305.1 306.1 306.2 307.1 308.1 309.1 310.1 311.1 312.1 313.1 314.1 314.2 314.3 315.1 316.1 317.1 318.1 319.1 319.2 319.3 320.1 321.1 321.2 321.3 321.4 322.1 323.1 324.1 325.1 326.1 327.1 328.1 329.1 330.1 331.1 332.1 332.2 333.1 334.1 334.2 335.1 336.1 337.1 337.2 338.1 339.1 340.1 341.1 342.1 343.1 344.1 345.1 346.1 347.1 348.1 349.1 350.1 351.1 351.2 352.1 353.1 354.1 354.2 355.1 356.1 357.1 358.1 359.1 360.1 361.1 362.1 362.2 363.1 363.2 363.3 364.1 365.1 366.1 366.2 366.3 367.1 368.1 369.1 370.1 371.1 372.1 373.1 374.1 375.1 376.1 377.1 377.2 378.1 378.2 379.1 380.1 381.1 382.1 383.1 384.1 385.1 386.1 387.1 388.1 389.1 390.1 391.1 392.1 392.2 393.1 394.1 395.1 396.1 397.1 398.1 399.1 400.1 401.1 402.1 403.1 404.1 405.1 406.1 407.1 408.1 409.1 410.1 411.1 412.1 413.1 414.1 415.1 416.1 417.1 418.1 418.2 419.1 420.1 420.2 421.1 422.1 423.1 423.2 424.1 425.1 426.1 427.1 428.1 429.1 429.2 429.3 429.4 429.5 430.1 431.1 431.2 431.3 432.1 433.1 434.1 434.2 435.1 436.1 437.1 437.2 437.3 437.4 437.5 438.1 439.1 440.1 441.1 442.1 443.1 444.1 445.1 446.1 447.1 448.1 449.1 450.1 450.2 450.3 451.1 452.1 453.1 453.2 454.1 455.1 455.2 456.1 457.1 457.2 458.1 459.1 460.1 460.2 460.3 461.1 462.1 463.1 464.1 464.2 464.3 465.1 465.2 466.1 467.1 467.2 468.1 468.2 468.3 469.1 470.1 470.2 470.3 470.4 470.5 471.1 472.1 472.2 472.3 472.4 473.1 473.2 474.1 474.2 474.3 475.1 476.1 477.1 478.1 479.1 480.1 482.1 483.1 484.1 484.2 484.3 484.4 485.1 486.1 487.1 488.1 489.1 490.1 490.2 490.3 491.1 491.2 492.1 493.1 494.1 495.1 495.2 495.3 496.1 497.1 497.2 497.3 498.1 499.1 499.2 499.3 500.1 501.1 501.2 502.1 503.1 503.2 504.1 505.1 506.1 507.1 508.1 509.1 510.1 511.1 512.1 513.1 514.1 514.2 515.1 516.1 517.1 517.2 518.1 519.1 520.1 521.1 522.1 523.1 524.1 525.1 526.1 527.1 528.1 529.1 530.1 531.1 532.1 533.1 534.1 535.1 536.1 537.1 538.1 539.1 540.1 541.1 542.1 543.1 544.1 545.1 546.1 546.2 546.3 547.1 548.1 549.1 550.1 551.1 552.1 553.1 554.1 555.1 556.1 557.1 558.1 559.1 560.1 561.1 562.1 563.1 564.1 565.1 566.1 567.1 568.1 569.1 570.1 571.1 572.1 573.1 574.1 575.1 575.2 576.1 576.2 576.3 577.1 578.1 579.1 579.2 580.1 581.1 582.1 582.2 582.3 583.1 583.2 584.1 584.2 584.3 585.1 585.2 585.3 586.1 586.2 587.1 588.1 589.1 590.1 590.2 591.1 591.2 591.3 592.1 593.1 594.1 594.2 594.3 594.4 595.1 595.2 595.3 595.4 596.1 596.2 596.3 596.4 597.1 597.2 598.1 599.1 599.2 599.3 600.1 601.1 602.1 603.1 603.2 603.3 604.1 605.1 606.1 607.1 608.1 609.1 610.1 611.1 612.1 613.1 613.2 614.1 615.1 616.1 617.1 618.1 619.1 620.1 621.1 622.1 623.1 624.1 625.1 626.1 627.1 628.1 629.1 630.1 631.1 632.1 633.1 634.1 635.1 636.1 637.1 638.1 639.1 640.1 641.1 642.1 643.1 644.1 645.1 646.1 647.1 648.1 649.1 650.1 650.2 651.1 652.1 652.2 652.3 653.1 654.1 654.2 654.3 654.4 655.1 655.2 655.3 655.4 655.5 655.6 656.1 657.1 658.1 658.2 659.1
Table of Contents Please note: This document is a guide only. Supplement to Habitual Residence Condition (HRC) Guidelines - Exceptions - Reviews and Appeals - EEA Nationals - Non-EEA Nationals - Domestic Violence - Who does not have the right to reside? - The Common Travel Area (CTA) - Asylum Seekers - The Five Factors - 6.1 - Length and Continuity of residence in Ireland or in any other particular country Periods spent in prison in Ireland - 6.2 - Length and purpose of any absence from Ireland - Returning migrants or resuming previous residence - 6.3 - Nature and pattern of Employment - Work arrangements - Conditions for recognising self-employment - Nationals of Romania and Bulgaria - 6.4 - Applicant's main centre of interest - 6.5 - Future intentions of applicant Can the HRC be reviewed once it has been satisfied? - (a) Certain Categories Of Non EEA Nationals - (b) Categories of people who will normally satisfy the HRC: - Charged with an Offence or Imprisonment - (c) Categories where examination of 5 factors may be required: - (d) Jobseekers and others who do not enter the labour force - The Social Welfare Consolidation Act 2005 Running Consolidation - S.I. No. 548/2015 — European Communities (Free Movement of Persons)Regulations 2015 - Regulation (EU) No 492/2011 of Council of 5 April 2011 on freedom of movement for workers within the Community, The Council Of The European Communities - Meaning of Worker in EU law for the purposes of SWA Introduction The purpose of this manual is to provide a comprehensive guide to aid understanding of the Habitual Residence Condition (HRC). It will explain in detail the HRC together with providing a detailed guide as to how Deciding Officers/Designated Persons (DOs/DPs) of the Department of Social Protection can reach decisions. The term "habitually resident" is not defined in Irish law, but it generally 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. In certain instances it is possible for someone to have arrived in Ireland for the first time and be habitually resident immediately for example programme refugees. Section 246 of the Social Welfare Consolidation Act 2005, as amended by Section 30 of the Social Welfare and Pensions Act 2007, Section 15 of the Social Welfare and Pensions (No. 2) Act 2009 and Section 11 and 12 of the Social Welfare Pensions Act 2014 - sets out the legislation with regard to determining whether the HRC is satisfied. A detailed account of the legislation impacting on the habitual residence condition HRC is set out in Appendix 3. A person must be habitually resident in the State at all times in order to be eligible for the following: - Blind Pension - Carer's Allowance - Child Benefit * - Disability Allowance - Domiciliary Care Allowance * - Guardian's Payment (Non Contributory) * - Jobseeker's Allowance - Jobseeker’s Allowance Transition - One Parent Family Payment * - State Pension (Non Contributory) - Supplementary Welfare Allowance (other than once off exceptional and urgent needs payments) and - Widow(er)'s or Surviving Civil Partner's Non Contributory Pension - Blind Welfare Allowance - Back to Work Family Dividend* (BTWFD) - effective from January 5th 2015. *As these payments are classed as Family Benefits and Social Advantage payments for the purposes of EU Regulaitons the HRC may not always apply. See section on exceptions. 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 DO/DP should bear in mind that habitual residence is only one condition and be mindful of its purpose and 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 HRC 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 HRC 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) Domiciliary Care Allowance and Back to Work Family Dividend (BTWF) for EU nationals who are migrant workers1, 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 4. Note: Family Income Supplement is also classified as a Family Benefit for the purposes of the EU social security regulations but the HRC does not apply to FIS. - Entitlement to Supplementary Welfare Allowance (SWA) is determined by designated persons (DP's). However, it is important for deciding officers and designated persons (DOs/DPs) to note that for the purposes of any claim to Supplementary Welfare Allowance (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 Supplementary Welfare Allowance (SWA), even if they do not satisfy the HRC for Jobseeker's Allowance or one of the other payments subject to the condition. For these reasons, these guidelines vary between Supplementary Welfare Allowance (SWA), Child Benefit, One Parent Family Payment and the other family benefits listed above as well as 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. 1 EU Regulation 1231/10 extended the provisions of Regulation 883/2004 to Third Country Nationals provided that they are legally resident in the territory of a Member State and are in a situation which is not confined in all respects within a single Member State. The role of deciding officer (DOs) and designated persons (DPs) in HRC The question of whether a person satisfies the requirement to be habitually resident in the State is one for decision/determination by a statutorily appointed deciding officer (DO) or a statutorily appointed designated person (DP) 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 (as amended) for details. In relation to habitual residence the role of a DO/DP is to make a fair and informed decision/determination on each case having considered all the evidence in each individual case including the 5 factors. The DO/DP will rely on the evidence provided by the claimant and be guided by national and EU law and Guidelines when reaching a decision/determination. 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/DP has to decide/determine 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 if 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 of HRC and any other relevant information to determine whether a person can be considered to be habitually resident in this country. 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/DP 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/DP 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 a Social Welfare Inspector to investigate further, in order to obtain full information. When the DO/DP is satisfied that all necessary evidence is collated, s/he will, then make a decision/determination on habitual residence based on theright to reside and the 5 factors in addition to any other relevant information. Reviews and Appeals Where an applicant is not satisfied with the decision of a DO/DP 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 the applicant seeks a review of the DO/DP decision in addition to or as an alternative to an appeal, the DO/DP should consider any new or additional evidence provided and decide whether a revised decision/determine in favour of the applicant is warranted. Section 246 (1) (a) provides that the person must be habitually resident in the State at the date of the time of making of the application, and the person must remain habitually resident in the State after the making of that application in order for any entitlement to subsist. This section was inserted by the Social Welfare and Pensions Act 2014, which came into force on 17 July 2014. Prior to this, HRC could only be examined at the date of application. Since 17 July 2014, HRC may be reviewed where there is any relevant change of circumstances, new facts/evidence such as the loss of the right to reside or if the person was absent for a significant period of time. Reviews may also arise where it is established that there was an error in the initial DO/DP decision. EEA nationals living in Ireland legally for more than 5 years qualify for permanent residency, and it would generally satisfy HRC. However, permanent residency can be lost if the person is out of the country for more than two years. Note: each case should be looked at carefully, reasonable judgement applied and DJE involved as necessary. Claimants who may no longer have a right to reside may not have been motivated to apply to have their status uplifted or renewed. If loss of Right to Reside is due to a technicality like not applying in time the claimant should not be penalised unreasonably. Claimants should be disallowed on clearly established grounds with a right of review/appeal. ( See section 6.) 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 Family Benefits Under European law, - Child Benefit, - One Parent Family Payment, - Guardian's Payment (Non-Contributory), - Domiciliary Care Allowance - Family Income Supplement (HRC test does not apply to FIS) - Back to Work Family Dividend (BTWFD) 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 or any other benefit which derives from their employment 2 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. 2 The most common benefits to be considered in this context include Jobseeker’s Benefit , Illness Benefit, Maternity Benefit and Occupational injuries Benefit. 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 Application of EU Rules to Family Benefits for more details) Supplementary Welfare Allowance (SWA) It is important for DOs/DPs to note that for the purposes of any claim to SWA an EEA national who is engaged in genuine and effective employment and has involuntary lost some or all of their work in Ireland is regarded as a migrant worker under EC law and does not need to satisfy the HRC 3. 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/former workers, not to self-employed persons. (Details of those who are exempt from the HRC for SWA are contained in Appendix 5). 3 In accordance with Art 7 of Regulation EU No 492/2011 migrant workers are entitled to the same tax and social advantages as workers from the host State. In the case of Ireland the only scheme recognised as a “social advantage” is the Supplementary Welfare Allowance Scheme. 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 the original decision 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. The Deciding Officer/ Designated Person (DO/DP) 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/DP proposes to make a decision on habitual residence which is different to a previous habitual residence decision in respect of the same person, both DOs/DPs must consult, 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 having been reached. Note: The DO/DP 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. 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, as amended, to put beyond doubt that residence, for the purpose of the HRC, 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 right to reside must be established first followed by consideration of the 5 factors The reason for this is that when issuing a decision, entitlement based on the right to reside test and the 5 factors should be set out separately in the decision letter. This is important so that both elements can be relied upon if the deiciosion is appealed. Who has a right to reside? Section 246(6) sets out a list of persons who shall be taken as having a right to reside. These include - Irish nationals have a right of residence in Ireland. Although not expressly referred to in subsection (6), UK nationals coming in from the Common Travel Area (CTA) also have a right to reside here under the CTA agreement. EEA/EU nationals who have a right of residence 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. 548/2015. - 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 have 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 - Intreo. - EU nationals who have been employed here for less than a year and became involuntarily unemployed may continue to remain for a further period of 6 months provided they are registered as job-seekers with this Department - Intreo. 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. - Other EU nationals may reside in the State as visitors or jobseekers for up to 3 months without formalities but do not have any entitlement to social assistance during that time; - Other EU Nationals may reside in the State subject to not being an unreasonable burden on the social assistance system of the State. See Point 7 of this Section on ‘Who does not have a right to reside’ for more information. Dependent family members of EEA Nationals 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 18th 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. 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: - a.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 - b.where the person was a victim of domestic violence during the marriage, OR - c.where the person has been granted custody of the EU national’s children by agreement or by court order, OR - d.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. EU Migrant Workers and Jobseekers A DO/DP 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. 548/2015). Non-EEA nationals The Irish Naturalisation and Immigration Service (INIS) is responsible for deciding who is allowed to remain in the State, and category of permission/ entitlements attach to that permission. The issuing of Immigration stamps are the responsibility of INIS and/or the Garda National Immigration Bureau (GNIB). Non EEA nationals must have a residency or work permit to legally reside and work in the State. Permission to reside will generally 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. In cases where the person’s passport is not stamped or the GNIB card is not available the applicant may be asked for the DJE Minister’s letter confirming their immigration permission. The validity of this letter should be checked with the DJE. However where an applicant indicates they have permission to reside but do not have a letter / card/ stamp or relevant documentation confirming their status, DO's/ DP's should seek clarification/ verification from one of the following agencies concerned. (1) Immigration and Citizenship Divisions: Website: 'www.inis.gov.ie' 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. Information on the requirements on which a non-EEA national is permitted to reside/work in the State are available on the following links: http://www.inis.gov.ie/en/INIS/Pages/registration-stamps http://www.inis.gov.ie/en/INIS/Pages/Without_Condition_Endorsement%20(Stamp%206) http://www.inis.gov.ie/en/INIS/Pages/Without_Condition_As_To_Time_Endorsements (2) Office of the Refugee Applications Commissioners (ORAC). ORAC remains responsible for dealing with applications for refugee status. Under the provisions set out in the Refugee Act, applicants have permission to remain in the State until their application for refugee status has been determined. When an applicant applies for refugee status at the Office of the Refugee Applications Commissioner , ORAC will issue the applicant with a Temporary Residence Certificate setting out their personal details and containing their photograph. The Temporary Residence Certificate is not an identity document. Since 14th of November 2013 these letters have been issued by ORAC. The ORAC website is at: http://www.orac.ie/website/orac/oracwebsite.nsf/page/index-en Telephone Numbers for the Customer Care Centre of ORAC are as follows: E-mail: oracmail@orac.ie Please note The Irish Naturalisation and Immigration Service (INIS) remain responsible for deciding who is allowed to remain in the State, and the category of permission/ entitlements attached to that permission. The issuing of Immigration stamps remains the responsibility of INIS and/or the Garda National Immigration Bureau (GNIB). Victims of Domestic Violence DO’s/DP’s should be familiar with the Department of Justice’s Guidelines on domestic violence and their applicability to the HRC. The guideline outlines how victims of domestic violence may apply to DJE for independent immigration status in their own right. The INIS document Victims of Domestic Violence Immigration Guidelines refers. Domestic violence may be an issue in some asylum or protection claims. However, where an applicant wants to apply for permission to remain solely on grounds of domestic violence, the application should be made to INIS. Asylum seekers who have been granted permission to remain. Note: see section 6 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? Asylum seekers Asylum seekers only have permission to remain in the State until their applications for refugee status or subsidiary protection have been determined and cannot be consideredto satisfy the HRC during this period. 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 considered a burden on the social assistance system, 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 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 as a jobseeker. - Note: Those who have lost their status as a worker are subject to the "sufficient resources condition". Note that these limitations do not apply to EEA Nationals who have been continuously legally resident in Ireland for 5 years or more. Any EEA National who has been legally resident for 5 years is entitled to permanent residence and restrictions such as the “sufficient resources” condition may not be applied after five years. 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 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). 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 permission to reside in the State i.e. present their GNIB card at the Social Welfare Local Office at time of claim. Letters from the Department of Justice may also be presented as proof of entitlement to reside and may be verified with the apporopriate agency before being accepted. Where an applicant indicates they have permission to reside but do not have a letter / card/ stamp or relevant documentation confirming their status, DO’s/ DP’s should seek clarification/ verification from the agency concerned. The grounds (i.e. stamp/visa) on which a non-EEA national is permitted to reside/work in the State are available on the following links: http://www.inis.gov.ie/en/INIS/Pages/registration-stamps http://www.inis.gov.ie/en/INIS/Pages/Without_Condition_Endorsement%20(Stamp%206) http://www.inis.gov.ie/en/INIS/Pages/Without_Condition_As_To_Time_Endorsements 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 548/2015 ( 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. There is no obligation on a Member State to provide support during the first 3 months of residence. In the case of an EEA national, Regulation 548/2015 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 548/2015 provides that in determining if a person has sufficient recources not to become an “unreasonable burden” on the social assistance system, the Minister shall have regard to any claim made by him or her for assistance under the Social Welfare Acts and any payment or service received by him or her under the Health Acts and/or the Housing Acts. This does not mean that any claim for social assistance should be regarded as an “unreasonable burden” An overall assessment of the specific burden the award of payment would place on the social assistance system as a whole, by reference to the personal circumstances of the individual istuation of the person concerned is required. Examine whether the person concerned is experiencing temporary difficulties and take into account the duration of residence, personal circumstances, and the amount of aid which has been granted. It should be considered whether the situation of financial hardship is sought in order to surmount an exceptional, unforeseen hardship. 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 (CTA) Although not expressly referred to in subsection (6), UK nationals coming in from the Common Travel Area (CTA) also have a right to reside here under the CTA agreement. Under SI No. 97/1999 – Aliens (Exemption) Order, 1999, “It is proper that the citizens of that country should be exempted from the application of the provisions of the Aliens Act, 1935 (No. 14 of 1935), and of the provisions of every aliens order made under section 5 of that Act.” UK nationals coming from the Common Travel Area have a right to reside here, but are still subject to satisfying the five factors or showing they satisfy HRC having regard to all the circumstances of the case. Asylum Seekers An asylum seeker is a person who has applied to the Office of the Refugee Applications Commissioner (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, as amended, 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. In some cases the permission to remain is expressed as granted for a certain period of time (e.g. 3 years) rather than indefinite leave to remain. Section 246(9) requires that even where a person has a right to reside in the State, the determination as to the person’s habitual residence in the State must be made in accordance with Sections 246(1) and (4). Therefore where permission to remain has been granted a determination as to the person’s habitual residence is required and the case should be examined by reference to all the circumstances of the person including the factors set out in Section 246(4) to establish if the person is habitually resident. In practice, in the vast majority of cases, it will be clear that once permission to remain has been granted the person’s centre of interest is now Ireland, and in general DOs and DPs should not have to seek the detailed information regarding residence, employment, etc that is required in other HRC cases in order to determine the person’s habitual residence in the State. Contact details of the Customer Care Centre of ORAC are as follows: 01-6028002, 01-6028168, 01-6028039, 01-6028022/8170. E-mail: oracmail@orac.ie The ORAC website is at: http://www.orac.ie/website/orac/oracwebsite.nsf/page/index-en 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 five factors are: 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 emphasised by the ECJ, that these factors are not exhaustive and any other relevant information must also be considered. 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: 6.1 - 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 6.4). 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). Periods spent in prison in Ireland It should be noted that periods spent in prison in Ireland are not counted towards a person’s length and continuity of residency in the State for HRC purposes. A person’s length and continuity of residence is but one HRC factor and periods spent in prison may constitute just one of a number of periods in a person’s residency in the State. 6.2 - 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.) 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. 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 Ltd. 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 Ltd. has also designed a declaration which will confirm where a customer is engaging with them as part of their repatriation. The declaration should 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. 6.3 - 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 must have 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. With effect from 01 January 2012 Bulgarian and Romanian Nationals no longer require a work permit in order to secure employment in Ireland. Between 2007 and 2011 certain restrictions applied Nationals of Croatia Croatia became the 28th Member State of the EU on 1st July 2013. With effect from that date, i.e. 1st July 2013, Croatian Nationals have full access to the Irish labour-market i.e. do not require work permits in order to take up employment in Ireland. Accordingly, EU Regulations on the Coordination of Social Security Systems [EU Regulation 883/2004 and EU Regulation 987/2009] apply to Croatian nationals working/residing here together with their families, in the same way as to Nationals of all other EU/EEA States. 6.4 - Applicant's main centre of interest An applicant's main centre of interest 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 6.2 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? 6.5 - 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. http://www.inis.gov.ie/en/INIS/Pages/registration-stamps http://www.inis.gov.ie/en/INIS/Pages/Without_Condition_Endorsement%20(Stamp%206) http://www.inis.gov.ie/en/INIS/Pages/Without_Condition_As_To_Time_Endorsements Please note: DOs/DPs should seek clarification where required. 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. 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: (a) those who must have either an employment permit or a residence permit (b) anywhere the five factors are usually found to be met (c) categories where examination of the five factors may be required. Can the HRC be reviewed once it has been satisfied? Social Welfare legislation provides that; 246.- (1) A requirement, in any of the provisions specified in subsection (3), for a person to be habitually resident in the State means that – - (a) the person must be habitually resident in the State at the date of the making of the application, and the person must remain habitually resident in the State after the making of that application in order for any entitlement to subsist, - (b) the person is a worker or a self-employed person residing in the State pursuant to article 7 of Directive 2004/38/EC of the European Parliament and of the council of 29 April 2004, from – - (i) a Member State, or - (ii) a member state of the European Economic Area. - (c) the person is a family member of a person referred to in paragraph (b), - (d) where a person referred to in paragraph (b) ceases to be such a worker or such a self-employed person , the person must be habitually resident in the State immediately after the date of such cessation, and must remain habitually resident in the State in order for any entitlement to subsist, or - (e) where a person referred to in paragraph (b) ceases to be such a worker or such a self-employed person, a family member of such a person must be habitually resident in the State immediately after the date of such cessation, and the family member must remain habitually resident in the State in order for any entitlement to subsist.* *Please always refere to the current Running Consolidation of the 2005 Act. In summary, HRC must be satisfied at all times. With effect from 17th July 2014, HRC may be reviewed is respect of a claim at any time. 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, they must be habitually resident to continue their entitlement - see 246(1) (d) and 246(1) (e) of the Social Welfare legislation (quoted previously). Remember that HRC does not apply to SWA Exceptional Needs Payments (ENPs); a person who loses their worker status and who doesn't satisfy the HRC may be entitled to an ENP. Family Benefits In the case of Family Benefit claims from an EEA national who is regarded as a migrant worker, the HRC is not applied. Where that person loses their worker status, they must be habitually resident to continue their entitlement. 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 (DJE) 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. ( See also Part 5 re: Sufficient resources and burden on the State). The burden on the state condition is set down by DJE. 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. Returning Irish Nationals following deportation to Ireland 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 from which they've been deported. Charged with an Offence or Imprisonment In any case where a person has been charged with an offence or spent a period of time in prison, the DO/DP should verify with the Dept. of Justice and Equality (DJE) that the claimant has a right to reside in Ireland, as this may have been revoked by DJE. If DJE confirm that the person is legally resident then the five factors should be examined – see 6.1. of the main guideline. (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 payment as the primary claimant or as an adult/child dependant of another person on a Social Welfare 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 since the 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 recognised as Refugees 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 recognised as refugees by the Minister for Justice and Equality are granted permission to remain in the State. (see http://www.inis.gov.ie/en/INIS/Pages/registration-stamps) Under EC law common criteria for the identification of persons genuinely in need of international protection are applied across EU Member states under Directive 2004/83/EC (the Asylum Qualification Directive). Those recognised as refugees in Ireland can only be regarded as habitually resident from the date of recognition, provided they have lived continuously in the State since then, and cannot be treated as habitually resident for any time before that. In practice, in the vast majority of cases it will be clear that once refugee status has been granted, the customer’s centre of interest is now Ireland, and in general DOs and DPs should not have to seek the detailed information regarding residence, employment etc that is required in other HRC cases in order to determine the person’s habitual residence. 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 all the circumstances of the case and in particular the five factors set out in Part 6. The recognition of a refugee 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. An asylum seeker is a person who has fled from his or her country and seeks legal and physical protection (asylum) as a refugee in another country. 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). Section 246(9) requires that a determination as to such person’s habitual residence is required and each case should be examined by reference to all the circumstances of the person to establish if he or she is habitually resident. In practice and considering the circumstances of Programme Refugee resettlement, their centre of interest will be Ireland from their date of arrival here. Therefore, DOs or DPs should be able to determine their habitual residence without seeking the detailed information regarding residence, employment etc that is required in other HRC cases. Subsidiary Protection A person who does not satisfy the conditions to be recognised as a refugee, 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 European Union (Subsidiary Protection) Regulations 2013 (SI No 426 of 2013) or the European Communities (Eligibility for Protection) Regulations 2006 (SI No 518 of 2006). This gives similar rights to that of recognised refugee, and a person and members of their family granted permission to remain in Ireland under these provisions should be treated similarly to refugees for HRC purposes from the date of that grant. Section 246 (7) of the Social Welfare and Pensions Act 2014 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. (It should be noted that the Regulations 2013 have replaced the previous Regulations of 2006 (SI No 518 of 2006). Temporary Leave to Remain The Minister for Justice and Equality has discretion 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, as amended,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. In the case of an applicant who is granted temporary leave to remain in the State, a determination as to the person’s habitual is required. The person can only be regarded as habitually resident from the date of the grant of the leave to remain. 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 claim for the person concerned as the primary claimant or as an qualified adult/child of another person on Social Welfare or by employment. Note: Statements of financial support from friends are not acceptable. Office of the Refugee Applications Commissioner (ORAC) ORAC has responsibility for applications for Subsidiary Protection and temporary leave to remain. ORAC will issue to each applicant, who has applied for subsidiary protection, a letter confirming that the person is an applicant with permission to remain temporarily in the State until a decision is made on their application. The ORAC website is at: http://www.orac.ie/website/orac/oracwebsite.nsf/page/index-en Telephone Numbers for the Customer Care Centre of ORAC are as follows: E-mail: oracmail@orac.ie 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 on the person's passport and a Certification of Registration issued by the GNIB (i.e. a GNIB card). In cases where the person’s passport is not stamped or the GNIB card is not available the applicant may be asked for the DJE Minister’s letter confirming their immigration permission. The validity of this letter should be checked with the DJE. Permission to remain in Ireland must be verified by the DJE outlining the grounds on which permission to remain has been granted where documentation such as the DJE Minister’s letter, a valid residency permit or stamp is not available. Information on the grounds (i.e. stamp/visa) on which a non-EEA national is permitted to reside/work in the State are available on the following links: http://www.inis.gov.ie/en/INIS/Pages/registration-stamps http://www.inis.gov.ie/en/INIS/Pages/Without_Condition_Endorsement%20(Stamp%206) http://www.inis.gov.ie/en/INIS/Pages/Without_Condition_As_To_Time_Endorsements 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 since initial date of stated arrival, 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 (e.g. 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. Prior to 2003, parents of an Irish-born child were also able to withdraw from the asylum process and seek to leave to remain. Since February 2003, the Department of Justice and Equality no longer accepts applications for leave to remain, based on a peron’s parentage of an Irish-born child. In 2005 under the Irish Born Child Scheme (IBC/05) a number of foreign national parents of children born in the State prior to 1 January 2005 and were granted leave to remain subject to certain conditions. 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. Permission to remain in Ireland must be verified by the DJE outlining the grounds on which permission to remain has been granted where documentation such as a valid residency permit or stamp is not available. 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. (d) 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 HRC 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 6 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 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: - 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; - his family status and family ties; - the exercise of any non-remunerated activity; - in the case of students, the source of their income; - his housing situation, in particular how permanent it is; - 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, as amended, 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." 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, as amended, provides that: (1) A requirement, in any of the provisions specified in subsection (3), for a person to be habitually resident in the State means that – - (a) the person must be habitually resident in the State at the date of the making of the application, and the person must remain habitually resident in the State after the making of that application in order for any entitlement to subsist, - (b) the person is a worker or a self-employed person residing in the State pursuant to article 7 of Directive 2004/38/EC of the European Parliament and of the council of 29 April 2004, from – - (i) a Member State, or - (ii) a member state of the European Economic Area. - (c) the person is a family member of a person referred to in paragraph (b), - (d) where a person referred to in paragraph (b) ceases to be such a worker or such a self-employed person , the person must be habitually resident in the State immediately after the date of such cessation, and must remain habitually resident in the State in order for any entitlement to subsist, or - (e) where a person referred to in paragraph (b) ceases to be such a worker or such a self-employed person, a family member of such a person must be habitually resident in the State immediately after the date of such cessation, and the family member must remain habitually resident in the State in order for any entitlement to subsist. (2) Subsection (2) deleted by Section 1(1)(b) of the Social Welfare and Pensions Act 2014. (3) The provisions of this Act referred to in subsection (1) are sections 141(9), 153(c), 161A (d), 163(3), 168(5), 173(6), 180 (2), 186(A)2), 186A(2), 186D(2) 192, 210(9) and 220(3) and 238(B). (4) A subsection (1), a deciding officer or a designated person (i.e. the HSE), when determining whether a person is habitually resident in the State for the purposes of tis Act, 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 t he 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 to whom a permission granted to reside in the State under Regulation 23, 25 or 26 of the Regulations of 2013 is in force: - Deleted by Section 11(1)(e)(ii) of the Social Welfare & Pensions Act 2014 - 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. *At time of writing, this is still in our legislation. SI 656/2006 has been updated by SI 548 of 2015 which came into operation on 1 February 2016. The SW Consolidation Act will be amended as soon as possible with the correct reference. (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; - an applicant within the meaning of the Regulations of 2013, or any other person awaiting a grant of permission to reside in the State under Regulation 23, 25 or 26 of the Regulations of 2013; - 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 s ection 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- - (i) whose application for subsidiary protection under Regulation 4 or 16 of the Regulations of 2006 has been refused, or whose permission under Regulation 4 or 16 of the Regulations of 2006 has been revoked, - (ii) whose application under Regulation 3 of the Regulations of 2013 for a subsidiary protection declaration has been refused, or whose subsidiary protection declaration has been revoked, under the Regulations of 2013, or - (iii) whose application under Regulation 25 or 26 of the Regulations of 2013 has been refused, or whose permission under Regualtion 25 or 26 of the Regulaitons of 2013 has been revoked. - 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 reside in the State under Regulation 23, 25 or 26 of the Regulations of 2013 or - is granted permission to remain in the State under and in accordance with 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). "Regulations of 2013" means the European Union (Subsidiary Protection Regulations) 2012 (S.I. No 426 of 2013). * Please always refer to the current Running Consolidation of the 2005 Act. S.I. No. 548 of 2015 — European Communities (Free Movement of Persons) Regulations 2015 Regulation (EU) No 492/2011 of the Council of 5 April 2011 on freedom of movement for workers within the Community. APPENDIX 4 - Application Of EU Rules To Child Benefit, One Parent Family Payment, Guardian's (Non Contributory) Pension And Domiciliary Care Allowance and Back to Work Family Dividend. 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. Back to Work Family Dividend The Back to Work Family Dividend is designed as an in-work, income support to assist families when exiting welfare. It provides a financial support (dividend) to jobseeker’s who take up or are in insurable employment or take up self-employment within four weeks of the end of their claim. Similarly one-parent families who take up or are in insurable employment or take up self-employment within four weeks of the end of their claim will be entitled to the dividend. One Parent Family Payment, Guardian's Payment (non-contributory), Domiciliary Care Allowance and Back to Work Family Dividend, are also classified as Family Benefits under EU law. In relation to exemption from the HRC for migrant workers in respect of Family Benefits: EU Regulations 883/2004 and 987/2009 apply. 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 HRC under the above EU Regulation, a DO/DP 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 HRC under EU regulations, it is then necessary to assess the case under the 5 factors for habitual residence ( see Part 6). 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 as amended 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." 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 its purpose and 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 HRC 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 492/2011 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 492/2011 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 492/2011 as amended by Directive 2004/38 (transposed into Irish legislation by S.I. 548/2015) 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 Designated Person 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. If the person is in receipt of SWA, his/her continued entitled to that payment should 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 State Pension Non-Contributory 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. See SWA Circular 01/2013 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 492/2011 and Directive 2004/38 (effective in Ireland by virtue of SI 548/2015), 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 DP 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 SWA/Rent Supplement is in payment. In the event of an appeal it is important that the DO/DP 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 – GEOGRAPHICAL SECTORS/BREAKDOWN The countries of the European Union are: - Austria - Belgium - Bulgaria - Croatia - 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 28 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 to which a worker is subject. 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. 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
1.1 2.1 3.1 4.1 5.1 6.1 7.1 7.2 8.1 8.2 9.1 10.1 11.1 12.1 13.1 14.1 15.1 16.1 17.1 18.1 18.2 19.1 20.1 21.1 22.1 23.1 24.1 24.2 25.1 26.1 27.1 28.1 29.1 30.1 31.1 32.1 32.2 33.1 34.1 35.1 36.1 37.1 38.1 39.1 40.1 41.1 42.1 43.1 44.1 45.1 46.1 46.2 47.1 48.1 49.1 50.1 51.1 52.1 53.1 54.1 55.1 56.1 57.1 58.1 59.1 60.1 61.1 62.1 63.1 64.1 65.1 66.1 67.1 67.2 68.1 69.1 70.1 71.1 72.1 73.1 74.1 75.1 75.2 76.1 77.1 78.1 79.1 80.1 81.1 82.1 83.1 84.1 85.1 86.1 87.1 88.1 89.1 90.1 91.1 92.1 93.1 93.2 94.1 95.1 96.1 97.1 98.1 99.1 100.1 101.1 102.1 103.1 104.1 105.1 106.1 107.1 108.1 108.2 109.1 110.1 111.1 112.1 113.1 113.2 114.1 115.1 116.1 117.1 118.1 119.1 120.1 121.1 122.1 123.1 124.1 124.2 125.1 125.2 126.1 127.1 128.1 129.1 130.1 131.1 132.1 133.1 134.1 135.1 136.1 137.1 138.1 139.1 140.1 141.1 142.1 143.1 144.1 145.1 146.1 147.1 148.1 149.1 150.1 151.1 152.1 153.1 153.2 154.1 155.1 156.1 157.1 158.1 159.1 160.1 161.1 162.1 163.1 164.1 165.1 166.1 167.1 168.1 169.1 170.1 171.1 171.2 172.1 173.1 173.2 174.1 175.1 176.1 177.1 177.2 178.1 179.1 179.2 180.1 181.1 181.2 182.1 183.1
Rialacha Céard is cónaí rialta ann? Níl an téarma “cónaí rialta” sainithe i ndlí na hÉireann. gcleachtas, is éard is brí leis ná go bhfuil garnasc profa agat le hÉirinn. Léiríonn an téarma marthanaí freisin – go bhfuil duine anseo ar feadh tréimhse fada agus go bhfuil sé i gceist acu fanacht anseo ar feadh tréimhse amach anseo. Le cruthú go bhfuil cónaí rialta anseo, teastaíonn fianaise uait. Má tá cónaí ort in Éirinn do do shaol uile, an-seans nach mbeidh mórán deacrachta agat a léiriú go sásaíonn na fachtóir a thugann cónaí rialta le fios - féach ar an liosta thíos. Cé a dhéanann an cinneadh más cónaitheoir rialta é/í an t-iarratasóir nó nach bhfuil? Cinneann Oifigí Cinnte atá ceaptha go reachtúil (nó Oifigí Cinnte sa chás go bhfuil Liúntas Leasa Shóisialaigh Bhreise i gceist) má chomhlíonann tú an díth le bheith i do chónaitheoir rialta sa Stát. Braithfidh an tOifigeach ar fhianaise a sholáthraíonn tú agus beidh sé/sí treoraithe ag dlí agus treoirlínte náisiúnta agus AE agus an cinneadh á dhéanamh acu. Nuair a dhéanann Oifigeach cinneadh má tá duine ina c(h)ónaitheoir rialta nó nach bhfuil ní mór dóibh sraith céimeanna a leanúint: Seiceáil más duine nach bhfuil ceaptha mar chónaitheoir rialta sa Stát thú Mar shampla, ní mheastar go bhfuil iarratasóirí ar thearmann ina gcónaitheoirí rialta. Is féidir leat tuilleadh a fháil amach maidir le cé nach gcaitear leo mar chónaitheoirí rialta in Aguisín 3 de na Treoirlínte Oibríocha. Seiceáil má tá tú díolmhaithe ón gcoinníoll cónaithe rialta Tá daoine áirithe, go háirithe daoine atá ina saoránaigh EEA agus a chaitear leo mar oibrí imirceach, díolmhaithe ón gcoinníoll cónaithe rialta (féach freisin Díolmhaithe ón gcoinníoll cónaithe rialta do shaoránaigh EEA thíos). Is féidir leat tuilleadh eolais a fháil maidir le cé atá díolmhaithe ón gcoinníoll cónaithe rialta i Roinn 3 de na Treoirlínte Oibríocha. Seiceáil ar rinneadh cinneadh cónaithe rialta cheana nó an bhfuil na cás faoi achomharc Ba cheart go leanfaidh cinneadh a rinneadh cheana ar chónaí rialta ar aghaidh go héilimh iartheachtacha ach amháin más rud é go raibh athrú ollmhór i gcúinsí an iarratasóra ón uair a rinneadh iarratas nua. Breithnigh má tá an ceart ag duine cur fúthu sa Stát Mura bhfuil ceart dlí agat cónaí a bheith agat sa Stát seo, ní chaithfear leat mar dhuine a bhfuil cónaí rialta acu. Tá an ceart ag na grúpaí daoine seo a leanas maireachtáil in Éirinn: - Saoránaigh na hÉireann - Saoránaigh an RA ón Limistéar Taistil Chomónta (CTA) - Saoránaigh an EEA atá fostaithe nó féinfhostaithe in Éirinn - Saoránaigh an EEA atá tar éis a bheith fostaithe anseo ar feadh níos mó ná bliain agus atá dífhostaithe anois, chomh fada agus atá siad cláraithe mar chuardaitheoirí poist leis an Roinn Coimirce Sóisialaí, - Saoránaigh an EEA atá tar éis a bheith fostaithe anseo ar feadh níos lú ná bliain agus atá dífhostaithe anois, is féidir leo fanacht anseo ar feadh 6 mhí chomh fada agus atá siad cláraithe mar chuardaitheoirí poist leis an Roinn Coimirce Sóisialaí - Saoránaigh EEA atá in ann tacú leo féin, lena c(h)éile/p(h)áirtí sibhialta agus le haon duine eile atá ag brath orthu agus le hárachas breoiteachta cuimsithí - Is féidir le saoránaigh an EEA atá ina gcuairteoirí nó ina gcuardaitheoirí poist fanacht ar feadh suas go 3 mhí chomh fada agus nach dtarlaíonn sé go bhfuil siad ina n-ualach ar chóras leasa shóisialaigh an Stáit taobh istigh den tréimhse sin - Náisiúnaigh Neamh-LEE a bhfuil cónaithaitheacht nó ceadfostaíochta acu a ligeann dóibh cónaí agus oibriú go dleathach sa Stát. Beidh ag duine a bhfuil cead cónaithe acu an stampa oiriúnach inimirce ina bpas agus Deimhniú Cláraithe arna eisiúint Biúró Náisiúnta an Gharda Síochána um Inimirce (GNIB) (cárta GNIB). - Iarrthóirí tearmainn ar tugadh cead dóibh chun fanacht sa tír Is gnách go mbíonn an stádas céanna cónaitheachta ag céile nó páirtnéir sibhialta cónaithe agus/nó cleithiúnaithe de dhuine ag a bhfuil stádas dídeanaí nó náisiúnaigh Neamh-LEE ag a bhfuil cead fostaíochta agus an stádas sin a bhíonn ag an urraitheoir. Ba cheart caitheamh leis na daoine muinteartha seo amhail gnáthchónaí bheith orthu a fhad agus a choimeádann siad féin agus an t-urraitehoir cead chun bheith sa Stát. Scrúdaigh na 5 fhachtóir chun cónaí rialta a chinneadh Nuair atá do cheart cónaithe bunaithe, scrúdaítear na 5 fhachtóir seo a leanas (atá tar éis a bheith leagtha síos i ndlí na hÉireann agus na hEorpa) d’fhonn a fháil amach má tá cónaí rialta ort in Éirinn nó mura bhfuil: - Fad agus leanúnachas an chónaithe in Éirinn - Fad agus cuspóir aon easpa ó Éire - Nádúr agus patrún fostaíochta - Do phríomhspéis - Do bharaí amach anseo chun cónaithe in Éirinn de réir mar atá le feiceáil ón bhfianaise Is féidir leat tuilleadh a fháil amach faoin 5 fhachtóir sna Treoirlínte Oibríocha ar shuíomh gréasáin an Roinne Coimirce Sóisialaí. Tá forlíonadh do na Treoirlínte, le cásanna a léiríonn an chaoi ina gcuirtear an coinníoll cónaithe rialta i bhfeidhm i gcleachtas, foilsithe ag an Roinn Coimirce Sóisialaí. Díolmhaithe ón gcoinníoll cónaithe rialta do shaoránaigh EEA Faoi dhlí an AE, i gcásanna áirithe, ní gá do shaoránaigh an EEA nó na hEilvéise an coinníoll cónaithe rialta a shásamh. Baineann na cúinsí seo leis na rudaí seo a leanas: - Sochair Theaghlaigh agus - Liúntas Leasa Bhreise Glactar leis go Sochair Theaghlaigh faoi Rialacháin an AE (pdf) iad na híocaíochtaí leasa shóisialaigh Éireannacha seo a leanas: Ciallaíonn sé seo go bhfuil siad iníoctha do dhuine a cháilíonn do stádas oibrí imircigh an AE do chleithiúnaí atá ina gcónaí in Éirinn nó i stát EEA eile. Ach, tá saoránaigh an EEA agus na hEilvéise a bhogann go hÉirinn ag cuardach fostaíochta faoi réir an choinníll chónaithe rialta sa ghnáthchaoi agus iad ag cuardach oibre. Más saoránaigh an EEA thú agus más féidir caitheamh leat mar oibrí imircigh AE, seans go bhfuil tú i dteideal Liúntais Leasa Shóisialaigh Bhreise (SWA). Chun a bheith caite le mar oibrí imircigh AE ní mór go raibh tú i bhfíor obair (ní obair fhánach) ón uair a dtáinig tú go hÉirinn. Ciallaíonn sé seo go d’fheadfadh daoine a bhí fostaithe ón uair a dtáinig siad go hÉirinn a bheith i dteideal SWA fiú mura gcomhlíonann siad an coinníoll cónaithe rialta do Liúntas Cuardaitheora Poist. Imircí ag filleadh ar Éire Coisceann rialacha an AE idirdhealú ar bhonn náisiúntachta maidir le tacaíocht shóisialta, mar sin níl an fhéidearthacht ann catagóir áitithe de shaoránaigh na hÉireann (imircí ag filleadh ar Éire, mar shampla) a rangú mar dhíolmhaithe ón gcoinníoll cónaithe rialta (go ginearálta nó do Liúntas Cúramóra) gan caitheamh le gach saoránach de chuid an AE mar a chéile. Ach, pléann na treoirlínte maidir le cinneadh a dhéanamh ar chónaí rialta an cheist i leith imircí ag filleadh go han-chuimsitheach. Tá an mhéid seo a leanas ráite sna treoirlínte: “D’fhéadfadh sé go gcaithfear le duine a raibh cónaí rialta aige/aici sa Stát cheana agus a bhog chun dul ag obair i dtír eile agus ansin a thógann suas a c(h)ónaí fadtéarmach sa Stát arís mar dhuine lena bhfuil cónaí rialta aige/aici díreach tar éis dó/di filleadh ar an Stát." Agus cinneadh á dhéanamh ar an bpríomhshuim atá ag imircí ag filleadh, tógann Oifigigh Cinnte na rudaí seo a leanas san áireamh: - An fáth a bhfuil tú ag filleadh, mar shampla, mar gur éag do chead cónaithe eachtartha - Do bharaí ráite - Socruithe fíoraithe atá déanta agat maidir le filleadh ar bhonn fadtéarmaigh, mar shampla, aistriú cuntas airgeadais agus aon mhaoin eile, deireadh a chur le teidlíochtaí atá ag daoine atá ina gcónaí thar lear sa tír eile, nó cúnamh ó Safe-Home nó clár cosúil leis chun cuidiú le himircí na hÉireann filleadh go buan - Fad agus leanúnachas do chónaí sa Stát cheana - Do thaifead fostaíochta nó féinfhostaíocht i stát eile agus - Más rud é gur choinnigh tú do naisc leis an gcónaí a bhí agat cheana agus más féidir caitheamh leat mar dhuine atá ag athchromadh an chónaithe a bhí agat cheana ina ionad tús a chur le ceann nua. Cáipéisíocht Má theastaíonn níos mó faisnéise ón RCS chun cinneadh a dhéanamh ar cibé acu an bhfuil nó nach bhfuil gnáthchónaí ort i bPoblacht na hÉireann, d’fhéadfadh go n-iarrfar ort foirm HRC1 (pdf) a chomhlánú. Is ainneoin an tír as a bhfuil tú ag filleadh ó d’fhéadfadh sé go mbeidh ort fianaise cáipéisíochta a sholáthar a léiríonn céard é do 'spéis' anois in Éirinn. Ba cheart go léireodh an fhianaise seo gur bhog tú go hÉirinn, go bhfuil sé i gceist agat fanacht in Éirinn go buan agus nach bhfuil sé i gceist agat filleadh chun cónaithe sa tír as a dtáinig tú. Nuair atá an fhéidearthacht ann, ba cheart duit an fhianaise cáipéisíochta seo a leanas a sholáthar: - Fianaise a thaispeánann gur thug tú suas aon lóistín a bhí agat thar leat - Fianaise a thaispeánann gur cheallaigh tú nó go ndearna tú iarratas aon shochar neamh-aistrithe a chur ar ceal - Fianaise gur aistrigh tú nó go ndearna tú iarratas aon ioncam inaistrithe a aistriú - Fianaise de na miosúir atá curtha i ngníomh agat chun cuntas bainc a oscailt anseo - Fianaise chun a léiriú go bhfuil tionóntacht agat i d’ainm féin (in Éirinn) - Fianaise na gcáipéisí taistil agat lena n-áirítear, más ann dóibh, bagáiste breise agus admhálacha seoladóireachta. Déanfaidh an tOifigeach cuí an fhianaise a chuirtear os a c(h)omhair a fhordheimhniú, chomh fada agus is féidir. I gcásanna áirithe, d’fhéadfadh sé go gcuirfear ceist ort fianaise cáipéisíochta breise a chur isteach. I gcásanna áirithe, d’fhéadfadh Cigire Leasa Shóisialaigh imscrúdú a dhéanamh ar d’iarratas. Ag cur isteach achomharc ar chinneadh maidir le cónaí rialta Mura bhfuil tú sásta le cinneadh Oifigeach Cinntí nó tá sé de cheart agat iarratas a dhéanamh ar athbhreithniú agus/nó ceart achomhairc. Má dhéantar athbhreithniú ar do chás, is féidir leat fianaise bhreise a chur isteach agus iarradh ar athbhreithniú ar an gcinneadh. Is féidir leat achomharc a thógáil i gcoinne an chinnidh chuig an Oifig Achomhairc Leasa Shóisialaigh neamhspleách. Más fearr leat, féadfaidh tú achomharc a dhéanamh go díreach chuig an Oifig Achomhairc Leasa Shóisialaigh neamhspleách gan athbhreithniú a lorg i dtosach.