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Campaign for fairness in social welfare decisions on HRC

Publication cover - briefing paper_immigrants rights_soc welf_Jan 10 Cover image for briefing paper_immigrants rights_soc welf_Jan 10

The campaign originally began in late 2006 as an attempt to restore Universal Child Benefit, because the introduction of the Habitual Residence Condition created an inequality between children living in Ireland, given that some groups were now no longer entitled to the payment.

The HRC is a qualifying condition for social welfare payments, introduced on 1 May 2004, in response to EU enlargement. All persons seeking social welfare payments after that date have been required to satisfy this condition, intended to ensure that only persons who had been living in Ireland for a certain period of time could qualify for social welfare payments. Initially this was set at two years but this has changed and now there is no fixed period of time. Instead five factors are to be taken into consideration. They are set out in Section 30 of the Social Welfare and Pensions Act 2007. No single factor is supposed to be decisive.

As a result, FLAC became an expert on the issue of the HRC and was contacted by a number of other NGOs for guidance and assistance. We became very concerned about how the HRC was being applied and began working to establish how exactly the law in this area was implemented.

We were invited to make a presentation to the Joint Oireachtas Committee on Social and Family Affairs in February 2008. We highlighted issues of concern in the application of the HRC in a submission to the Irish Human Rights Commission in August of that year.

Through its work in this area, FLAC also became involved in a number of social welfare appeals against refusal of Child Benefit as well as some other payments on the basis of the HRC. Following some decisions of the Chief Social Welfare Appeals Officer, in September 2009 FLAC issued a briefing paper clarifying the law around the Habitual Residence Condition.This was updated in December 2009 with further cases and information. It summarises the effect of four recent decisions by the Chief Appeals Officer. He rejected an argument by the Department of Social and Family Affairs that no-one in the asylum/protection/leave to remain process can satisfy the HRC, which is a pre-condition for receiving social welfare payments.

These decisions go some way to shedding light on the application of the HRC. Decisions should be based on the five criteria set out in legislation rather than arbitrarily excuding entire groups.

In December 2009, FLAC issued a briefing paper on the social welfare rights of immigrants, jointly with Crosscare, MRCI and the Vincentian Refugee Centre. Unfortunately the following day the government introduced an amendment to its annual budget-related Social Welfare Bill that removed the right to social welfare payments (except Direct Provision) from all people seeking asylum or protection in Ireland. Thus the briefing has been updated in January 2010 to include these changes.

Campaign Resources

Take Action

FLAC advises anyone who is affected by the Habitual Residence Condition to consult some of the organisations that offer advice and assistance to immigrants and asylum-seekers or their legal advisors. We regret that FLAC is not in a position to advise on individual applications.

If you are a lawyer and you are interested in volunteering for work on social welfare law, please contact our campaigns officer.

If you have further questions please contact us at campaigns@flac.ie or by telephone at 01-874 5690.