Guest article by FLAC’s Michael Farrell: Important Decisions on Habitual Residence Condition for Social Welfare

Michael Farrell is FLAC's Senior Solicitor.

Two former asylum seekers who were represented by FLAC have been awarded arrears of Child Benefit for the time they spent in Direct Provision when their applications for benefit were rejected.  The decisions followed long drawn out appeals to the Social Welfare Appeals Office.

Both applicants were mothers of Irish citizen children and following the decision of the Court of Justice of the European Union (CJEU) in the Ruiz Zambrano case in 2011 they were given leave to remain in Ireland.  In the Zambrano case the CJEU held that parents of dependent children who are citizens of an EU member state must be allowed to live there with their children to look after and provide for them so that they can enjoy the benefits of EU citizenship.

Both women had been refused Child Benefit when they were in Direct Provision on the basis that they did not satisfy the Habitual Residence Condition (HRC). 

In the first case, Maria (not her real name) had a baby boy who was born in Belfast in 2004 and was entitled to Irish citizenship – this was at a time when the law provided that anyone born in the island of Ireland was automatically entitled to Irish citizenship.  Maria had returned to her own country but came to Dublin in 2007 and applied for asylum.  She was placed in Direct Provision and applied for Child Benefit in January 2009 but was refused. The Social Welfare Deciding Officer said she did not satisfy the HRC because her status was undecided, Ireland was not her centre of interest, and her future intentions were uncertain.

When Maria was given leave to remain in 2011 as a Zambrano parent, she again applied for Child Benefit and was awarded it this time, but only from the date when she had been given leave to remain.  She appealed, arguing that under the Zambrano ruling she should have been entitled to reside here from when her son was born, or when he was acknowledged as an Irish citizen. If that was so and she had had a right to reside since coming to Ireland with her son in 2007, she would have met the first requirement of the HRC as her status would not have been “undecided”.

The Social Welfare Appeals Officer said in her decision that the Zambrano ruling by the EU Court had “clarified the interpretation of existing EU law as it should have been interpreted since it was introduced”.  In other words, Maria had had a right to reside here from 2007.

She went on to say: “At the date of her claim the Appellant had been resident in the State for over a year, had made meaningful efforts to integrate into the local community and establish a centre of interest in this country.  This together with her subsequent actions supports her contention that she intended to remain in Ireland for the foreseeable future”.

She concluded that Maria was habitually resident when she applied for Child Benefit in January 2009.  The Department of Social Protection subsequently agreed to pay Maria arrears of Child Benefit from January 2009 to when she was given leave to remain in August 2011, and payment had commenced.

In the second case, Anna (again not her real name) also had a son born in Belfast in 2004 and came to Dublin towards the end of 2005 as an asylum seeker and lived in Direct Provision.  Her son was issued with an Irish passport early in 2006 and she applied for Child Benefit at that time but no decision was taken on her application and she did not receive the benefit.   She applied again in 2011 but her application was rejected on HRC grounds. She was given leave to remain as a Zambrano parent in 2011 and was awarded Child Benefit from then on.  The Social Welfare Deciding Officer held that she did not satisfy the Habitual Residence Condition (HRC) prior to that date.

The Appeals Officer did not rely specifically on the Zambrano decision in this case. Instead she noted the absence of a decision on the first application, made in 2006, and said she could not deal with an appeal where there was no decision.  FLAC, acting for Anna requested that a decision be made and a Deciding Officer duly rejected the 2006 application on the basis that she had not satisfied the HRC and Anna appealed.

The Appeals Officer then dealt with the 2006 application, saying that in 2006 it had not been necessary to have a right to reside in order to satisfy the HRC and the legislation did not exclude asylum seekers.  She said that to comply with the HRC required a “degree of permanence – meaning that a person has been here for some time ... and is intending to stay for a period into the foreseeable future.  It implies a close association between the applicant and this country and relies heavily on fact”.

She held that Anna did not satisfy the HRC when she first applied for Child Benefit early in 2006 as she (Anna) had only been in the country for about three months.  However, she said that an Appeals Officer could re-assess an applicant’s position at a later date to see if things had changed.  She held that by August 2007, when Anna had been in the country for nearly two years and had been joined for a time by her husband, she did satisfy the HRC and that this decision should continue to apply until she was given leave to remain in 2011.

The Department of Social Protection agreed to pay Anna arrears from 2007 to 2011.

 

 

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