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Habitual Residency Clause & Going Abroad to Look for Work?

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  • 24-10-2010 9:31pm
    #1
    Closed Accounts Posts: 909 ✭✭✭


    Just wondering, if you are getting a social welfare payment (DA) and decide to go abroad (not the UK) to look for work but it doesn't work out or you can't find work and you then return to Ireland and apply once again for social welfare are you screwed? As in you won't fulfill the Habitual Residency condition?

    We're playing with the idea of heading to eastern Europe to teach English or possibly setting up a small English language centre (we have some funds) but are realistic enough to know things may not - if not probably would not - work out. But if it didn't work out and we returned to Ireland and then couldn't even get social welfare, well, no point even trying it. Better off to stay on a social welfare payment and not risk failing. Thanks.


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Comments

  • Registered Users Posts: 1,759 ✭✭✭gustafo


    marti8 wrote: »
    Just wondering, if you are getting a social welfare payment (DA) and decide to go abroad (not the UK) to look for work but it doesn't work out or you can't find work and you then return to Ireland and apply once again for social welfare are you screwed? As in you won't fulfill the Habitual Residency condition?

    We're playing with the idea of heading to eastern Europe to teach English or possibly setting up a small English language centre (we have some funds) but are realistic enough to know things may not - if not probably would not - work out. But if it didn't work out and we returned to Ireland and then couldn't even get social welfare, well, no point even trying it. Better off to stay on a social welfare payment and not risk failing. Thanks.

    Well i'm not sure about doing this when you are on DA i don't really think you could but if you were claiming JSB or JSA then you would really have to gone outside of ireland for 2 years or more for this habitual residence to kick in.


  • Closed Accounts Posts: 909 ✭✭✭marti8


    gustafo wrote: »
    Well i'm not sure about doing this when you are on DA i don't really think you could but if you were claiming JSB or JSA then you would really have to gone outside of ireland for 2 years or more for this habitual residence to kick in.

    Thanks but not sure why I couldn't do that if I was on DA? Never knew the habitual residency clause didn't kick in for 2 years? Are you sure about that? Would make it easier for folks to try and go and find work abroad or even *try* to setup a small business.

    Of course I'd have to reapply for DA, if I got it fine, if not, fine - there's always JSA. But that would be worst case scenario, hopefully it would work abraod but if not well, there's the safety net in place.


  • Registered Users Posts: 244 ✭✭Immaculata


    I'm not being bitchy, but how come you're getting DA if you're well enough to be thinking of working abroad? Shouldn't you be on JSA instead?

    That aside, the habitual residence condition wouldn't affect you until you'd been gone more than two years. So I wouldn't worry about it if I were you.

    Good luck with your plans. I hope everything works out.


  • Closed Accounts Posts: 909 ✭✭✭marti8


    Immaculata wrote: »
    I'm not being bitchy, but how come you're getting DA if you're well enough to be thinking of working abroad? Shouldn't you be on JSA instead?

    That aside, the habitual residence condition wouldn't affect you until you'd been gone more than two years. So I wouldn't worry about it if I were you.

    Good luck with your plans. I hope everything works out.

    Being on DA doesn't mean you absolutely can't work it simply means you may have difficulty working. If I had no difficulty whatsoever working then yes, I would be on JSA - unless I was working of course.


  • Registered Users Posts: 1,110 ✭✭✭mike kelly


    according ot the IT, if you are gone more than 2 years, you will no longer be eligible for benefits - http://www.irishtimes.com/newspaper/ireland/2010/1028/1224282143695.html


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  • Closed Accounts Posts: 909 ✭✭✭marti8


    According to the Irish Independent: "More than 3,000 returning Irish emigrants have been refused social welfare payments because they haven't been living in Ireland for the two years before they made their claims"

    http://www.independent.ie/national-news/over-3000-returning-irish-refused-dole-2397877.html

    So, it seems you have to be living in Ireland for at least 2 years prior to applying for social welfare? No point emigrating to look for work so.......


  • Registered Users Posts: 7,920 ✭✭✭cee_jay


    marti8 wrote: »
    According to the Irish Independent: "More than 3,000 returning Irish emigrants have been refused social welfare payments because they haven't been living in Ireland for the two years before they made their claims"

    http://www.independent.ie/national-news/over-3000-returning-irish-refused-dole-2397877.html

    So, it seems you have to be living in Ireland for at least 2 years prior to applying for social welfare? No point emigrating to look for work so.......

    No not necessarily - have a look at my post here:
    http://www.boards.ie/vbulletin/showpost.php?p=68732175&postcount=5

    Someone who has been here for the past 2 years may not satisfy it even - say if they own property abroad, and their whole family (i.e. wife and kids) still live abroad also.
    It is dependent on everyone's personal circumstances.


  • Closed Accounts Posts: 909 ✭✭✭marti8


    cAr0l wrote: »
    No not necessarily - have a look at my post here:
    http://www.boards.ie/vbulletin/showpost.php?p=68732175&postcount=5

    Someone who has been here for the past 2 years may not satisfy it even - say if they own property abroad, and their whole family (i.e. wife and kids) still live abroad also.
    It is dependent on everyone's personal circumstances.

    Thanks for that but when you say "However, if an Irish person went abroad for a year or two, say travelling to Australia, and came back they would be approved as their family and centre of interest would be here" I'm not too sure on that as it seems to be discretionary, basically at the whim of whoever is interviewing you when you apply for social welfare. Thye could say no, as has happened in many cases it seems, and then you would have to appeal during which time you would have no income - appeal process could last 8 months. I wonder if you do appeal a refusal can you then go to a CWO and apply for SWA on the basis that you have no income whatsoever?

    All in all it is too big a risk to take I think, the possibility exists that social welfare could be refused. Pity they ever introduced the habitual residency clause - it was introduced only when the eastern European states joined the EU, to stop welfare tourism from eastern Europe. Pity they also didn't introduce a work permit quota system for the new membber states - as most of the other EU states did. Thought that having the eastern European states join the EU was great at the time but now realise it was at Irelands expense. It was great for them but not for us!


  • Registered Users Posts: 7,920 ✭✭✭cee_jay


    Look at the deciding officer guidelines under length and purpose of any absence abroad, it states:
    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 habitual residence in Ireland has not been lost.

    Resuming previous residence
    A person who had previously been habitually resident in the State or within the Common Travel Area and who moved to live and work in another country and then resumes his/her permanent residence in the State may be regarded as being habitually resident immediately on his/her return to the State.

    In determining habitual residence in such cases the deciding officer 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
    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.

    Also under Centre of Interest, it says:
    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.

    In the case of someone travelling to Australia, they were only on a temporary visa while working over there, so their centre of interest could not be there - they no longer have a right to live there. Their centre of interest would have always been Ireland as that is where their family is. Therefore, they would not be disallowed on HRC grounds. I haven't heard of anyone who has been disallowed in this situation.

    The case mentioned in the Irish Independent is a case of a woman leaving outside of the country for 17 years - her centre of interest was obviously no longer Ireland but USA, so yes she would be disallowed on HRC grounds.

    And, yes you can make a claim for SWA while an appeal is pending.


  • Registered Users Posts: 2,168 ✭✭✭Balagan


    Could someone expect to get SWA while awaiting appeal re habitual residency when the guidelines for SWA state

    What social assistance payments are affected by the habitual residence rule?


    You must be habitually resident in Ireland to qualify for the following payments:

    * Jobseeker's Allowance
    * State Pension (Non-Contributory)
    * Blind Pension
    * Widow(er)'s Non-Contributory Pension and Guardian's Payment (Non-Contributory)
    * One-Parent Family Payment
    * Carer's Allowance
    * Disability Allowance
    * Child Benefit
    * Supplementary Welfare Allowance


    http://www.citizensinformation.ie/categories/social-welfare/irish-social-welfare-system/social-assistance-payments/residency_requirements_for_social_assistance_in_ireland


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  • Registered Users Posts: 5,614 ✭✭✭ArtSmart


    regarding the Op, if you're talking DA - disability allowance, there are a number of conditions to retaining same. no way in the universe could you legally engage in work abroad and legally keep DA - legally meaning informing them so kinda confused by the post.

    Regarding habitual residence the concept is based around legitimate connection to Ireland - would like to see specific examples of Irish citizens who returned from abroad after 5 years absent not getting JSA.

    Beyond 5 years there may be some issues, depending .

    edit; read that article, are the indo for real - the 60's and 70's? then 18 months thrown in from nowhere, pure nonsense. Irish citizens can claim a pension in the uk if there that long and have it issued anywhere in europe, something not been told in that article - sensationalism


  • Registered Users Posts: 5,614 ✭✭✭ArtSmart


    frpm the IT article mentioned above.
    wrote:
    HUNDREDS OF returning Irish emigrants are being mistakenly refused social welfare payments because complex rules introduced to prevent “welfare tourism” are not understood by welfare officers.

    the first paragraph should be enough for even a non-discerning reader.


  • Registered Users Posts: 5,614 ✭✭✭ArtSmart


    marti8 wrote: »
    Thanks for that but when you say "However, if an Irish person went abroad for a year or two, say travelling to Australia, and came back they would be approved as their family and centre of interest would be here" I'm not too sure on that as it seems to be discretionary, basically at the whim of whoever is interviewing you when you apply for social welfare. Thye could say no, as has happened in many cases it seems, and then you would have to appeal during which time you would have no income - appeal process could last 8 months. I wonder if you do appeal a refusal can you then go to a CWO and apply for SWA on the basis that you have no income whatsoever?

    All in all it is too big a risk to take I think, the possibility exists that social welfare could be refused. Pity they ever introduced the habitual residency clause - it was introduced only when the eastern European states joined the EU, to stop welfare tourism from eastern Europe. Pity they also didn't introduce a work permit quota system for the new membber states - as most of the other EU states did. Thought that having the eastern European states join the EU was great at the time but now realise it was at Irelands expense. It was great for them but not for us!

    ah, all is revealed.


  • Closed Accounts Posts: 909 ✭✭✭marti8


    cAr0l wrote: »
    Look at the deciding officer guidelines under length and purpose of any absence abroad, it states:
    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 habitual residence in Ireland has not been lost.

    Resuming previous residence
    A person who had previously been habitually resident in the State or within the Common Travel Area and who moved to live and work in another country and then resumes his/her permanent residence in the State may be regarded as being habitually resident immediately on his/her return to the State.

    In determining habitual residence in such cases the deciding officer 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
    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.

    Also under Centre of Interest, it says:
    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.

    In the case of someone travelling to Australia, they were only on a temporary visa while working over there, so their centre of interest could not be there - they no longer have a right to live there. Their centre of interest would have always been Ireland as that is where their family is. Therefore, they would not be disallowed on HRC grounds. I haven't heard of anyone who has been disallowed in this situation.

    The case mentioned in the Irish Independent is a case of a woman leaving outside of the country for 17 years - her centre of interest was obviously no longer Ireland but USA, so yes she would be disallowed on HRC grounds.

    And, yes you can claim SWA while an appeal is pending.

    But unless I've overlooked something there is no mention of 2 years? I do see the word "may" but that by definition isn't an absolute - it's simply a "maybe"? Someone who moves to say Bulgaria doesn't need a visa so they could establish permanent residence there - as opposed to say the US, Canada or Australis/NZ.

    And what exactly are considered "periods of temporary or occasional absence", how do they actually define that - what are the exact timeframes? The whole thing raises more questions than it answers. Thanks for your replies of course but I still am left wondering. And what if you don't return to Ireland at regular intervals? And again, waht exactly is considered "regular" - once a year, twice a year, once a month? It not all that clear really.

    As the other poster alluded to it seems that one can't get SWA if refused social welfare because access to SWA also falls under the HRC? God, what a mess they've made of it all. People thinking of emigrating better know the fcats before they go because if things don't work out or if after a few years they need to return home to Ireland they'll possibly get nothing - so it seems.


  • Closed Accounts Posts: 909 ✭✭✭marti8


    ArtSmart wrote: »
    ah, all is revealed.

    Eh "all is revealed"? Care to elaborate? I am simply saying that having had the eastern European states enter the EU and not to have a quota system and work permit system in place was a misguided policy. That is not racist or bigoted - just incase you try to suggest it is. If it is then most of the rest of the EU is just that because most other EU states did exactly that, they introduced a quota and work permit system for nationals of the new member states.Ireland did not, rather stupidly. All we had to do was most of the other EU states did - but our government knew better of course.............


  • Registered Users Posts: 7,920 ✭✭✭cee_jay


    It all depends on each individual's circumstances. No two cases are the same. Every case has to be looked at and consideration given to the 5 factors, and each case is decided on its own merits. There is no mention of 2 years in the guidelines - I don't know where this 2 year rule is coming from.
    As for permanent residence - its all got to do with ties and to what country also. If you bought a house abroad, and had a child living abroad, your centre of interest would be seen as being abroad - even if you were only living outside of Ireland for 10 months.
    Same as someone living in Ireland for 5 years - your centre of interest would not be Ireland as your child is not here.
    Basically, each case needs to be examined, and the 5 factors weighed up against each other.

    As for SWA - some people who do not have an entitlement to JSA due to habitual residence may have an entitlement to SWA - search the guidelines for Supplementary Welfare Allowance.


  • Closed Accounts Posts: 909 ✭✭✭marti8


    ArtSmart wrote: »
    regarding the Op, if you're talking DA - disability allowance, there are a number of conditions to retaining same. no way in the universe could you legally engage in work abroad and legally keep DA - legally meaning informing them so kinda confused by the post.

    Regarding habitual residence the concept is based around legitimate connection to Ireland - would like to see specific examples of Irish citizens who returned from abroad after 5 years absent not getting JSA.

    Beyond 5 years there may be some issues, depending .

    edit; read that article, are the indo for real - the 60's and 70's? then 18 months thrown in from nowhere, pure nonsense. Irish citizens can claim a pension in the uk if there that long and have it issued anywhere in europe, something not been told in that article - sensationalism

    I never said I would work abroad and keep DA in Ireland. Of course not. I am simply asking if I go abroad to work or try to setup a small business can I then return to Ireland should things go belly up and claim social welfare whether JSA or DA (of course you have to be assesed by a doctor in the pay of the department for DA) Btw, where do you get the 5 year bit from? Is that actually quoted somewhere in the guidelines? Or is it just as guess?


  • Registered Users Posts: 7,920 ✭✭✭cee_jay


    Guys if you want to discuss EU/Government Policy and their decisions, please take it to Politics. This thread is about someone wanting to know the habitual residence implications on claiming if they went abroad to work for a while, and then wanted to return.


  • Registered Users Posts: 5,614 ✭✭✭ArtSmart


    marti8 wrote: »
    I never said I would work abroad and keep DA in Ireland. Of course not. I am simply asking if I go abraod to work or try to setup a small business can I then return to Ireland should things go belly up and clai social welfare whether JSA or DA (of course you have to be assesed by a doctor in the pay of the department for DA) Btw, where do you get the 5 year bit from? Is that actually quoted somewhere in the guidelines? Or is it just as guess?

    5 years confuses some CWO's. At the end of the day, if you're born here, have family here, have drawn SW here and have not set up home abroad you're fine.
    Refusals which stick are for those decades or close to decades away, bec logically they must have set up home abroad, ie their connection is now elsewhere.


  • Closed Accounts Posts: 909 ✭✭✭marti8


    cAr0l wrote: »
    It all depends on each individual's circumstances. No two cases are the same. Every case has to be looked at and consideration given to the 5 factors, and each case is decided on its own merits. There is no mention of 2 years in the guidelines - I don't know where this 2 year rule is coming from.
    As for permanent residence - its all got to do with ties and to what country also. If you bought a house abroad, and had a child living abroad, your centre of interest would be seen as being abroad - even if you were only living outside of Ireland for 10 months.
    Same as someone living in Ireland for 5 years - your centre of interest would not be Ireland as your child is not here.
    Basically, each case needs to be examined, and the 5 factors weighed up against each other.

    As for SWA - some people who do not have an entitlement to JSA due to habitual residence may have an entitlement to SWA - search the guidelines for Supplementary Welfare Allowance.

    Yes, it is all discretionary really. There don't seem to be hard and fast rules but rather general guidelines open to interpretaion. Problem with that is the interpretation could not go the way you want it to go, lol. All in all emigrating outside the CTA to secure work etc for any undefined period of time *could* result in your loss of entitlement to social welfare upon return to Ireland.


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  • Registered Users Posts: 5,614 ✭✭✭ArtSmart


    marti8 wrote: »
    Eh "all is revealed"? Care to elaborate? I am simply saying that having had the eastern European states enter the EU and not to have a quota system and work permit system in place was a misguided policy. That is not racist or bigoted - just incase you try to suggest it is. If it is then most of the rest of the EU is just that because most other EU states did exactly that, they introduced a quota and work permit system for nationals of the new member states.Ireland did not, rather stupidly. All we had to do was most of the other EU states did - but our government knew better of course.............

    fair nuff.
    when you didnt seem to be hearing the responses given, i thought otherwise. 's cool


  • Registered Users Posts: 7,920 ✭✭✭cee_jay


    marti8 wrote: »
    I never said I would work abroad and keep DA in Ireland. Of course not. I am simply asking if I go abroad to work or try to setup a small business can I then return to Ireland should things go belly up and claim social welfare whether JSA or DA (of course you have to be assesed by a doctor in the pay of the department for DA) Btw, where do you get the 5 year bit from? Is that actually quoted somewhere in the guidelines? Or is it just as guess?

    Basically I think he is implying the longer you are away, the more likely you lose Ireland as your centre of interest.
    As a follow on from my last post regarding looking at the five factors, the guidelines say:
    the list should not be used as a means of scoring points for and against a person satisfying the condition. No single aspect is consistently likely to be the most important factor though some may be more persuasive in certain circumstances than in others.

    No single factor is conclusive. 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.

    Nobody can say you were away for this long so you will or won't be habitually resident on your return.


  • Closed Accounts Posts: 909 ✭✭✭marti8


    ArtSmart wrote: »
    fair nuff.
    when you didnt seem to be hearing the responses given, i thought otherwise. 's cool

    Apology accepted ;)


  • Registered Users Posts: 3,872 ✭✭✭View


    It is possible to bring benefits from Ireland with you when you travel within the EU while you look for work in other member states. This is for a limited period which you state in advance and - if you intend to return, you must return within that stated time period (Obviously this is only an issue if you don't find employment in the other member state).

    The relevant EU form that you need is called a U2 form which is available from Welfare.

    Links to the further information are: Citizen's Information and Welfare


  • Closed Accounts Posts: 909 ✭✭✭marti8


    cAr0l wrote: »
    Basically I think he is implying the longer you are away, the more likely you lose Ireland as your centre of interest.
    As a follow on from my last post regarding looking at the five factors, the guidelines say:
    the list should not be used as a means of scoring points for and against a person satisfying the condition. No single aspect is consistently likely to be the most important factor though some may be more persuasive in certain circumstances than in others.

    No single factor is conclusive. 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.

    Nobody can say you were away for this long so you will or won't be habitually resident on your return.

    Yes, it is all rather discretionary alright. And my fear is that now given the economic mess we're in that there may be "pressure" on deciding officers to refuse claims - moreso than existed before, who knows. It could be fine. someone may get social welfare without too much fuss but then again it could go the other way I guess - as there are no clear definitions as to what constitues a, b or c, if you see what I mean.


  • Closed Accounts Posts: 909 ✭✭✭marti8


    View wrote: »
    It is possible to bring benefits from Ireland with you when you travel within the EU while you look for work in other member states. This is for a limited period which you state in advance and - if you intend to return, you must return within that stated time period (Obviously this is only an issue if you don't find employment in the other member state).

    The relevant EU form that you need is called a U2 form which is available from Welfare.

    Links to the further information are: Citizen's Information and Welfare

    Yes, but I think the only benefit you can "travel with" is JB, and maybe some other benefits rather than any allowances. In my situation I'm getting DA and DB. I think you can get your JB transferred abroad for 3 months (perhaps it's 6 but think it's 3)


  • Registered Users Posts: 1,110 ✭✭✭mike kelly


    "centre of interest" is a nonsensical term invented as an excuse not to pay money to people. If the government wants to tell returning emigrants to F&%K off they should do so straight out.

    I'll bet travellers returning from England after 10 years don't have any problem in getting dole.


  • Registered Users Posts: 7,920 ✭✭✭cee_jay


    mike kelly if you wish to rant, this is not the forum for it. No more comments along the same lines about travellers or any other groups that may find themselves claiming social welfare for whatever reasons.


  • Registered Users Posts: 1,110 ✭✭✭mike kelly


    cAr0l wrote: »
    mike kelly if you wish to rant, this is not the forum for it. No more comments along the same lines about travellers or any other groups that may find themselves claiming social welfare for whatever reasons.

    it's alright for you to write nonsense about returning emigrants though. And what's with the bold?

    "groups that may find themselves claiming social welfare for whatever reasons."

    why does anyone claim social welfare?


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  • Registered Users Posts: 7,920 ✭✭✭cee_jay


    mike kelly wrote: »
    it's alright for you to write nonsense about returning emigrants though. And what's with the bold?

    "groups that may find themselves claiming social welfare for whatever reasons."

    why does anyone claim social welfare?

    Infracted.

    The next person to drag this thread off topic will be banned for a week. Any issues anyone has re groups of people claiming benefits can be discussed elsewhere


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