The social welfare system in Ireland is divided into three main types of payments. These are:
With all social welfare payments in Ireland, you must satisfy the rules for each scheme to qualify. You must also be habitually resident in Ireland to qualify for the following payments:
Your spouse, civil partner or cohabitant and any dependent children you have are not required to satisfy the habitual residence condition in their own right. So if you apply for a social welfare payment only you, the applicant, have to satisfy the habitual residence condition.
The Department of Social Protection has published comprehensive Operational Guidelines on the habitual residence condition.
You must be habitually resident in the State on the date you make the application and you must remain habitually resident in the State after you apply. This provision was added by the Social Welfare and Pensions Act 2014, which came into force on 17 July 2014. Before this, the habitual residence condition (HRC) could only be examined on the date of application.
Since 17 July 2014, the HRC decision on your case may be reviewed if any relevant circumstances change (for example, if you lose the right to reside) or if you were absent from the State for a significant period of time.
The term "habitually resident" is not defined in Irish law. In practice it means that you have a proven close link to Ireland. The term also conveys permanence - that a person has been here for some time and intends to stay here for the foreseeable future. Proving you are habitually resident relies heavily on fact. If you have lived in Ireland all your life, you will probably have no difficulty showing that you satisfy the factors which indicate habitual residence – see list below.
Who decides whether an applicant is habitually resident?
Statutorily appointed Deciding Officers (or Determining Officers in the case of Supplementary Welfare Allowance) determine whether you meet the requirement to be habitually resident in the State.
The Officer will rely on the evidence you provide and be guided by national and EU law and guidelines when making their decision. When the Officer makes a decision on whether a person is habitually resident they must follow a series of steps:
1. Check whether you are a person who is not regarded as being habitually resident in the State
For example, asylum seekers are not regarded as habitually resident. You can find out more about who is not regarded as habitually resident in Appendix 3 of the Operational Guidelines.
2. Check whether you are exempt from the habitual residence condition
Certain people, in particular EEA nationals who are considered migrant workers, are exempt from the habitual residence condition (see also Exemption from the habitual residence condition for EEA nationals below). You can find out more about who is exempt from the habitual residence condition in Section 3 of the Operational Guidelines.
3. Check whether a previous habitual residence decision has been given or if the case is under appeal
A previous decision on habitual residence should carry through to subsequent claims unless there has been a significant change in circumstances since a new application was made.
4. Consider whether the person has a right to reside in the State
If you do not have a legal right of residence in this State, you will not be regarded as habitually resident. The following groups of people have a right to reside in Ireland:
The resident spouse or civil partner and/or dependants of a person with refugee status or of a non-EEA national with an employment permit normally hold the same habitual residence status as that of the sponsor. These family members should be treated as habitually resident as long as they and the sponsor retain permission to be in the State.
5. Examine the 5 factors to determine habitual residence
Once your right to reside has been established the following 5 factors (which have been set down in Irish and European law) are examined to find out if you are habitually resident in Ireland:
You can find out more about the 5 factors in the Operational Guidelines on the Department of Social Protection's website. The Department of Social Protection has also published a supplement to the Guidelines with scenarios which show how the habitual residence condition is applied in practice.
Under EU law, in certain circumstances, EEA citizens or Swiss nationals do not have to satisfy the habitual residence condition. These circumstances apply to:
The following Irish social welfare payments, to which the HRC applies, are classified as Family Benefits under EU Regulations (pdf):
This means that they are payable to a person who qualifies for EU migrant worker status for dependants who are resident in Ireland or in another EEA state. However, EEA citizens or Swiss nationals who move to Ireland to look for employment are subject to the habitual residence condition in the normal way while looking for work.
Note that Family Income Supplement is also classified as a Family Benefit for the purposes of the EU social security regulations but the habitual residence condition does not apply to FIS.
If you are an EEA national and can be considered an EU migrant worker, you may be entitled to Supplementary Welfare Allowance (SWA). To be considered an EU migrant worker you must have been in genuine employment (not casual work) since coming to Ireland. This means that people who have been employed since arriving in Ireland may be entitled to SWA even if they do not satisfy the habitual residence condition for Jobseeker's Allowance.
EU rules prevent discrimination on nationality grounds in relation to social security, so it is not possible to exempt a particular category of Irish citizens (such as returning Irish emigrants) from the habitual residence condition (either in general or for Carer’s Allowance) without extending the same treatment to all EU nationals. However, the guidelines on determination of habitual residence address the issue of returning emigrants very specifically. The guidelines state: “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.”
When determining the main centre of interest for returning emigrants, Deciding Officers take account of:
If the DSP needs more information to decide whether you are habitually resident in the Republic of Ireland you may be asked to fill out the HRC1 form (pdf).
Regardless of what country you are coming from you may be asked to provide documentary evidence that shows your 'centre of interest' is now in Ireland. This evidence should show that you have moved to Ireland, you intend to settle in Ireland permanently and you do not intend to go back to live in the country you came from.
Where possible, you should provide the following documentary evidence:
All evidence presented will be authenticated, as far as is possible, by the relevant Officer. In some cases you may be asked to submit further documentary evidence. In certain cases, a Social Welfare Inspector may investigate your application.
If you are not satisfied with the decision made in your case you have the right of review and/or the right of appeal. If you wish to have your case reviewed you can submit additional evidence and ask for the decision to be reviewed. You can also bring an appeal against the decision to the independent Social Welfare Appeals Office. If you prefer, you may appeal directly to the independent Social Welfare Appeals Office without first asking for a review.
If you have a question relating to this topic you can contact the Citizens Information Phone Service on 0761 07 4000 (Monday to Friday, 9am to 8pm) or you can visit your local Citizens Information Centre.