Moving from Scotland to Ireland

orchidsrpretty

Hi all, my cousin moved over to Ireland from Scotland last November. She had a job over christmas(for 2 months) and since has been unable to find work. She has been to the Social welfare office and seen the community welfare officier who have both told her she is not entitiled to any form of social welfare here unless she has been resident for 2 years. She also went to the citizens advice who pretty much told her the same thing, is this really correct as I was under the impression that she could transfer her payment from scotland over to Ireland. On a side not she has been an orphan since she was 12 and her only immediate family is her brother that remains in Scotland, so should that not qualify for her habitual residence here?

She is pretty upset about the whole thing as she doesn't want to return to Scotland as she will have nowhere to stay, but I cannot continue to support her here. The social welfare officer appartently told her that it was ""silly of her to come to Ireland in the first place and she should go back home."

As far as I am aware she was working part time in Scotland and recieving benefits. She is 19yrs old if that makes any difference.

mrsbyrne

the habitual residence condition is too complex to go into here, but basically if both SW and the CWO have told her she is not entitled to anything then that would tell me that she does not fulfill any of the conditions. for example shes not been here for anything like a suficent amount of time, she has only one close family member and he does not live here, she appears to have left a job in Scotland to come here. Why? the habitual residence condition demands that you prove ireland is now your centre of interest and you have no longer any ties with, in your cousins case, scotland. your cousins left a job and family and come here to lodge with you it appears and work at a job that lasted 2 months. last week i encountered a polish man who has been here for nearly 5 years, worked at the same job until he was let go in december 2009, lived at the same address constantly brother and 2 sisters all here. his jsb ran out in december and he has just been refused jsa.Why? he does not fulfill the habitual residence condition because he has 100euro in a bank account in poland.Sw say this shows he still has ties with poland. now he will appeal this and probably win his appeal,but i think this shows you what a weak case your cousin would have. sorry but i cant sugar coat it for you, either she finds some kind of work or shell probably have to go home.:(

orchidsrpretty

Thanks for reply, didnt realise it would be that hard to prove habitual residence. The reason she left Scotland was her brother moved house and there was no room for her. Oh well I have given her a month to get a job and after that she will have to back if there is no luck with the social welfare.

marti8

orchidsrpretty wrote: »

Thanks for reply, didnt realise it would be that hard to prove habitual residence. The reason she left Scotland was her brother moved house and there was no room for her. Oh well I have given her a month to get a job and after that she will have to back if there is no luck with the social welfare.

As far as I know both the dole office and CWO are just plain wrong in their interpretation. The HRC covers both the UK and Ireland. A British person coming to Ireland IS entitled to dole and SWA while waiting for dole just as an Irish person going to the UK is entitled to the same UK benefits as a British person would be entitled to. To the best of my knowledge she IS entitled to payment, I could be wrong but I don't think so. This arrangement predates EU membership and isn't dependant on any EU regulations. It's based on the CTA: Common Travel Area agreement.

5.1 - 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. An applicant who has a home or close family in another country would normally retain habitual residence in that country (see Paragraph 5.4).
However, the longer persons reside continuously in a country, the more likely they are to develop their main centre of interest in that country and to lose the ties with their previous country of residence.
Bearing in mind the presumption clause in Section 246 (see Part 4), and the reciprocal arrangements with the UK concerning the *Common Travel Area (CTA), for the purpose of this factor periods of residence within the CTA immediately prior to moving to live in Ireland should be treated the same as periods of residence in Ireland. This arrangement applies only to UK citizens and EEA nationals who had retained their centre of interest within the Common Travel Area during these periods.
* Ireland is part of the Common Travel Area which also includes England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man.The CTA agreement means that there are no legal barriers to a UK citizen who wishes to transfer their residence, temporarily or permanently, to Ireland, but all the HRC criteria should be examined in the usual way to determine whether the person has actually transferred their habitual residence to this State.
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 Paragraphs 5.3 and 6.1);
• to seek employment (rather than to take up an actual job offer).

http://www.welfare.ie/EN/OperationalGuidelines/pages/habres.aspx#5.1

cee_jay

How is that wrong? The legislation states if a person comes for any of the above reasons they are unlikely to be habitually resident in Ireland and the 5 criteria needs to be assessed.

marti8

cee_jay wrote: »

How is that wrong? The legislation states if a person comes for any of the above reasons they are unlikely to be habitually resident in Ireland and the 5 criteria needs to be assessed.

Because she is already in the State and has already worked here and is now unemployed. She is a UK national, not another EU national for whom the 2 year rule would apply full stop. Periods of residence in the UK suffice for the HRC - it's as though she had been in Ireland all along from what I can understand. Periods of residency in other EU member states don't count. The UK is an exception as we have the Common Travel Area. Aren't there thousands of Irish people currently going to the UK who if they cannot find work are also entitled to British social welfare? That's always what I thought at least. The UK and Ireland have reciprocity when it comes to social welfare.

She hasn't come here to look for work and in the meantime claim dole - she came here, worked and is now unemployed. As far as I see it she is entitled to social welfare. She isn't in any one of the categories mentioned which would exclude her from getting social welfare, as far as I can see. If I'm mistaken I apologise for misleading the OP but to be honest I don't believe I am. OP, she should appeal asap. Or simply head back to them (dole office and CWO) and state her case more forcefully and threaten to appeal. She should also ask, demand if need be, for any refusal to be given in writing which she will then include with her appeal.

eastbono

If she was working in Scotland she can apply to have her contributions transfered to Ireland and these can be credited to her contributions she has paid in Ireland as she has worked since coming from Scotland. If she has enough contributions she may be entitled to JSB. She should apply for JSA in the meantime and wait for her HRC disallowance (and it will be disallowed) and then send in her appeal which will take a couple of months.

mrsbyrne

marti8 wrote: »

Because she is already in the State and has already worked here and is now unemployed. She is a UK national, not another EU national for whom the 2 year rule would apply full stop. Periods of residence in the UK suffice for the HRC - it's as though she had been in Ireland all along from what I can understand. Periods of residency in other EU member states don't count. The UK is an exception as we have the Common Travel Area. Aren't there thousands of Irish people currently going to the UK who if they cannot find work are also entitled to British social welfare? That's always what I thought at least. The UK and Ireland have reciprocity when it comes to social welfare.

She hasn't come here to look for work and in the meantime claim dole - she came here, worked and is now unemployed. As far as I see it she is entitled to social welfare. She isn't in any one of the categories mentioned which would exclude her from getting social welfare, as far as I can see. If I'm mistaken I apologise for misleading the OP but to be honest I don't believe I am. OP, she should appeal asap. Or simply head back to them (dole office and CWO) and state her case more forcefully and threaten to appeal. She should also ask, demand if need be, for any refusal to be given in writing which she will then include with her appeal.

marti i was going to step back from this thread bit i feel at this point that i should point out that imho you are, in fact, misleading the op. you are over-simplifying the hrc. HRC is examined over 5 diferent criteria only one of which involves the common travel area.as eastbono has pointed out she will be disallowed JSA on account of the HRC, she will get the refusal in writing, she can appeal and her appeal will not be heard in 2011. what would you recommend she do in the meantime? if she was working in scotland before she came over she could set about transferring her entitlement but that involves considerable red tape as well. incidentally, i would not recommend that the op "threaten" SW staff or be "forcefull" or even "demand". its completely unnecessary and totally conterproductive.

marti8

mrsbyrne wrote: »

marti i was going to step back from this thread bit i feel at this point that i should point out that imho you are, in fact, misleading the op. you are over-simplifying the hrc. HRC is examined over 5 diferent criteria only one of which involves the common travel area.as eastbono has pointed out she will be disallowed JSA on account of the HRC, she will get the refusal in writing, she can appeal and her appeal will not be heard in 2011. what would you recommend she do in the meantime? if she was working in scotland before she came over she could set about transferring her entitlement but that involves considerable red tape as well. incidentally, i would not recommend that the op "threaten" SW staff or be "forcefull" or even "demand". its completely unnecessary and totally conterproductive.

All I am doing is expressing my take on it. From what can I see this person is entitled to social welfare.

mrsbyrne

marti8 wrote: »

All I am doing is expressing my take on it. From what can I see this person is entitled to social welfare.

your not just "expressing your take on it". you are offering advice. you said, and i quote,
"OP, she should appeal asap. Or simply head back to them (dole office and CWO) and state her case more forcefully and threaten to appeal. She should also ask, demand if need be, for any refusal to be given in writing which she will then include with her appeal."
i am quite sure that recommending that the op threaten public servants who are simply operating within the guidelines, or demand anything, forcefully or otherwise, could only be described as a very bad idea.

marti8

mrsbyrne wrote: »

your not just "expressing your take on it". you are offering advice. you said, and i quote,
"OP, she should appeal asap. Or simply head back to them (dole office and CWO) and state her case more forcefully and threaten to appeal. She should also ask, demand if need be, for any refusal to be given in writing which she will then include with her appeal."
i am quite sure that recommending that the op threaten public servants who are simply operating within the guidelines, or demand anything, forcefully or otherwise, could only be described as a very bad idea.

There is nothing wrong with someone threatening to appeal, I did not say threaten a civil servant, I said she could threaten to appeal. There is also nothing wrong with demanding a written refusal. If someone is refused a, b or c they are entitled to have that in writing so they can show the written refusal on appeal should they wish to appeal.

You are very selective in your quotes, I also said, that I may be wrong and I also said that I hoped I wasn't misleading the OP. I made that quite clear and then gave my opinion on what the person in question should do. I am still of the opinion that that person in question satisfies the HRC requirement and is entitled to social welfare. If I am wrong so be it but that is how I read it.

mrsbyrne

marti8 wrote: »

There is nothing wrong with someone threatening to appeal, I did not say threaten a civil servant, I said she could threaten to appeal. There is also nothing wrong with demanding a written refusal. If someone is refused a, b or c they are entitled to have that in writing so they can show the written refusal on appeal should they wish to appeal.

You are very selective in your quotes, I also said, that I may be wrong and I also said that I hoped I wasn't misleading the OP. I made that quite clear and then gave my opinion on what the person in question should do. I am still of the opinion that that person in question satisfies the HRC requirement and is entitled to social welfare. If I am wrong so be it but that is how I read it.

yes marti8 you are entitled to your opinion as to the op's entitlement or lack thereof to a social welfare payment, as am i. however i will stand by my assertion that there is nothing to be gained by the op following your advice to "threaten"" forcefully" and "demand" in relation to dealing with the department. in fact as i said before it would be completely counterproductive and is as such very poor advice. incidentally, why would anyone threaten a sw employee with an appeal? is the employee supposed to recoil in terror?? why demand a refusal in writing, why not just ask for the written refusal? why all the aggression?

marti8

mrsbyrne wrote: »

yes marti8 you are entitled to your opinion as to the op's entitlement or lack thereof to a social welfare payment, as am i. however i will stand by my assertion that there is nothing to be gained by the op following your advice to "threaten"" forcefully" and "demand" in relation to dealing with the department. in fact as i said before it would be completely counterproductive and is as such very poor advice. incidentally, why would anyone threaten a sw employee with an appeal? is the employee supposed to recoil in terror?? why demand a refusal in writing, why not just ask for the written refusal? why all the aggression?

Aggression? Lol, there isn't any. It's all semantics. I stand by my assertion that if someone gets a "no" and they aren't quite sure about it they should demand and they should threaten to appeal etc etc etc. From what I can see looking at the HRC in relation to British nationals the person in question is actually entitled to social welfare, as I said all along, from the begining, I may be wrong but that is how I see it.

Saadyst

I'll go by with what Marti said. Reason why? Because I was in a similar position 2 years ago.

Lived in Scotland all my life, moved over here in May 09, had no work (but do now). Lived off savings and with help from friends. Applied for JSA, took a long time - went to CWO in meantime and got payment from there. JSA refused first time, and on appeal to the same office, went through.

Got the same load of crap that the OP described - "why did you come here? it was a bad idea. you should just go back home. there's nothing for you here. just leave."

Also, on transferring benefits, you need to have paid PRSI at least once, and then you can go in to the office and get them to transfer over your contributions, upon which you should be entitled to JSB if you have enough contributions in the UK.

mrsbyrne

Saadyst wrote: »

I'll go by with what Marti said. Reason why? Because I was in a similar position 2 years ago.

Lived in Scotland all my life, moved over here in May 09, had no work (but do now). Lived off savings and with help from friends. Applied for JSA, took a long time - went to CWO in meantime and got payment from there. JSA refused first time, and on appeal to the same office, went through.

Got the same load of crap that the OP described - "why did you come here? it was a bad idea. you should just go back home. there's nothing for you here. just leave."

Also, on transferring benefits, you need to have paid PRSI at least once, and then you can go in to the office and get them to transfer over your contributions, upon which you should be entitled to JSB if you have enough contributions in the UK.

with respect, you'll have to take my word for it, i am working at the coalface, a hell of a lot has changed in this country since you came over in may 2009. its not that rules have been changed, they haven't, but rules can be interpreted differently, and are. you didnt say how long you waited for your appeal to be heard. whatever length it was you can double it now. i can guarantee you the ops cousin's appeal will not be allowed.

orchidsrpretty

Thanks for all the advice here. I have been hearing alot of what Marti8 has been saying, that it should be easy for her to transfer her payments etc. But on the face of it, its quite a different story. I went with her to the SW office yesterday and even armed with the infomation on her being able to transfer her payments, they really were not very helpful:(

eastbono

Its her contributions she can transfer now. If she was in receipt of JSB in Scotland before she came to Ireland she could have applied in Scotland to have this benefit transferred to Ireland and it would have been paid for 78 days if she had been in payment in Scotland for 4 weeks.

marti8

orchidsrpretty wrote: »

Thanks for all the advice here. I have been hearing alot of what Marti8 has been saying, that it should be easy for her to transfer her payments etc. But on the face of it, its quite a different story. I went with her to the SW office yesterday and even armed with the infomation on her being able to transfer her payments, they really were not very helpful:(

I wasn't actually talking about her having her payment etc transferred from Scotland. I was just saying that being a UK national she meets the requirements of the HRC as far as I can see. She should seek letters of refusal from both the dole office and the CWO and then appeal. She should also ask them to explain their interpretation of the HRC because to me it seems that they have interpreted it wrongly. And as a result of this she is being refused a social welfare payment.

mystic

marti8 wrote: »

I wasn't actually talking about her having her payment etc transferred from Scotland. I was just saying that being a UK national she meets the requirements of the HRC as far as I can see. She should seek letters of refusal from both the dole office and the CWO and then appeal. She should also ask them to explain their interpretation of the HRC because to me it seems that they have interpreted it wrongly. And as a result of this she is being refused a social welfare payment.

I've been following this thread since it was first posted and had to comment.

Marti8 - are you a Deciding Officer with the Department of Social Protection dealing specifically with Habitual Residence Decisions?

If the answer is 'No' (which I suspect it is - apologies if I'm incorrect in that assumption) then please refrain from saying that the DO and CWO got the decisions wrong as they would be privvy to more specific information about the OP's cousin than posted by the OP.

You keep repeating that the OP's cousin should seek letters of refusal. This I assure you is standard practice. A decision is not valid until the claimant is provided with a detailed letter clearly stating the reasons for refusal. This letter also contains information on how to ask the DO for a review of their decision and how to appeal the decision.

http://www.welfare.ie/EN/OperationalGuidelines/Pages/decnatj.aspx

Orchidsrpretty
1. Was your cousin working in Scotland immediately before coming to Ireland? If 'Yes', how long was she working in Scotland for?
2. Was she getting Jobseeker's Allowance in Scotland before coming to Ireland?
3. Did she pre-arrange her employment here?

Habitual Residence is a highly technical area of SW legislation and there's much more to it than just living here or in the Common Travel Area for 2 years.

By the way, everyone claiming Jobseeker's Allowance has to have a HRC decision done. That includes Irish claimants too!!

marti8

No, I'm not a deciding officer, lol. Never said I was - I am simply expressing my opinion and from what I can see - from what the OP has said - the person in question is entitled to social welfare. That person in question hasn't just arrived in Ireland, she has worked here and is now unemployed. She is a British national and because of the CTA the UK is treated as though it was Ireland.

Going on the information provided by the OP and the HRC rules I would be interested in hearing why exactly you think the person in question is not entitled to social welfare in Ireland? You asked whether I was a "Deciding Officer with the Department of Social Protection dealing specifically with Habitual Residence Decisions" and I told you, no. Now, are you a deciding officer?

mrsbyrne

marti i have lifted this from citizensinformation.ie
What is habitual residence?

Habitual residence means you have a proven close link to Ireland. 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.

The term habitually resident is not defined in either Irish or EC law. However, the following 5 factors, which have been set down in Irish and European law, will be examined to find out if you are habitually resident in Ireland:

Length and continuity of residence in Ireland or other parts of the Common Travel Area
Length and purpose of any absence from Ireland or the Common Travel Area
Nature and pattern of employment
Your main centre of interest
Your future intentions to live in Ireland as it appears from the evidence

as i pointed out to you in a previous post and as you can read for yourself here, five factors are considered in the examination. only two refer to the common travel area. will you not accept that as the employment only lasted 2 months, the op's cousin might be disallowed on that factor alone?!?

mrsbyrne

marti8 wrote: »

No, I'm not a deciding officer, lol. Never said I was - I am simply expressing my opinion and from what I can see - from what the OP has said - the person in question is entitled to social welfare. That person in question hasn't just arrived in Ireland, she has worked here and is now unemployed. She is a British national and because of the CTA the UK is treated as though it was Ireland.

Going on the information provided by the OP and the HRC rules I would be interested in hearing why exactly you think the person in question is not entitled to social welfare in Ireland? You asked whether I was a "Deciding Officer with the Department of Social Protection dealing specifically with Habitual Residence Decisions" and I told you, no. Now, are you a deciding officer?

marti once again you insist that you have only expressed your opinion. you have advised the op, and most unwisely imho, in several different posts, to challenge the dept. in a most aggressive manner. please dont deny this as your posts are there for all to see. this has already resulted in her returning to her SW office to enquire about having entitlements transferred from scotland "armed" with" information"(by this she presumably means your advice). this has brought her yet more disappointment as her local office have probably told her, quite correctly, that she will have to take it up with the DHSS in scotland. what do you advise now , marti, that she go back again and "threaten" them with an appeal? also so what if mystic is a deciding officer? nowhere in the rules do i see a ban on deciding officers!lol

marti8

mrsbyrne wrote: »

marti i have lifted this from citizensinformation.ie
What is habitual residence?

Habitual residence means you have a proven close link to Ireland. 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.

The term habitually resident is not defined in either Irish or EC law. However, the following 5 factors, which have been set down in Irish and European law, will be examined to find out if you are habitually resident in Ireland:

Length and continuity of residence in Ireland or other parts of the Common Travel Area
Length and purpose of any absence from Ireland or the Common Travel Area
Nature and pattern of employment
Your main centre of interest
Your future intentions to live in Ireland as it appears from the evidence

as i pointed out to you in a previous post and as you can read for yourself here, five factors are considered in the examination. only two refer to the common travel area. will you not accept that as the employment only lasted 2 months, the op's cousin might be disallowed on that factor alone?!?

No, to be honest I don't see that at all. A British person in Ireland is for social welfare purposes treated as an Irish person in Ireland - thanks to the CTA. It works exactly the same way for an Irish person in the UK, when it comes to claiming social welfare they are for all purposes British.

An Irish person in Ireland meets the HRC by virtue of being Irish and living within the CTA (Ireland in that instance) A British person in Ireland meets the HRC by virtue of being British and living within the CTA (the UK and later Ireland) The whole spirit of the HRC was to discourage primarily east European nationals from coming to Ireland and claiming social welfare - that was what it was designed for, that was the motive behind its introduction. As far as I know the HRC was only introduced when the east European states joined the EU in 2004. It didn't exist prior to that.

The HRC is a mess. Whether someone is successful on not seems to depend simplyon how a deciding officer or CWO interprets the rules - this is the problem it is open to intrepretation and very often the interpretation reached is incorect.

The very nature that this person is now unemployed after only working for a short period of time isn't really of consequence, now were that person say Polish or German or Greek it would be an issue but because the person is British (that is Irish for social welfare purposes) it isn't even a factor, again all thanks to the CTA.

From my understandig a British person doesn't have to be habitually resident in Ireland - they simply have to be habitually resident within the CTA, that is Ireland or the UK. This person was and is.

From the Depts own site:

Habitual residence means you have a proven close link to Ireland. If you have lived in Ireland all your life, you will probably have no difficulty showing that you satisfy the factors in Section 4 which indicate habitual residence.
Residence in other parts of the Common Travel Area will also be counted in considering these factors.


http://www.welfare.ie/EN/Publications/SW108/Pages/2Whatdoeshabitualresidencemean.aspx

mystic

marti8 wrote: »

No, I'm not a deciding officer, lol. Never said I was - I am simply expressing my opinion and from what I can see - from what the OP has said - the person in question is entitled to social welfare. That person in question hasn't just arrived in Ireland, she has worked here and is now unemployed. She is a British national and because of the CTA the UK is treated as though it was Ireland.

Going on the information provided by the OP and the HRC rules I would be interested in hearing why exactly you think the person in question is not entitled to social welfare in Ireland? You asked whether I was a "Deciding Officer with the Department of Social Protection dealing specifically with Habitual Residence Decisions" and I told you, no. Now, are you a deciding officer?[/QUOTE]

Yes, I am actually!!

Here's a few general rules re. HRC.

1. How long has the person been living in the this State (Republic of Ireland)?
2. Why did the person come here and how long do they expect to stay here? (work, family, etc.)
2. Has that person come to the State with a job offer or in the hope of getting a job here? (where unemployment is at a historical all-time high!)
3. Has the person an established employment record in this State? Established means more than 2 months!!
4. Does the person have family links to this State? (In the OP's cousin's case it appears that her closest family member (her brother) lives in Scotland, so Scotland would be deemed her centre of interest.

Each HRC case is different.

I have already asked the op to provide more details regarding her cousin's work in Scotland. If she worked in Scotland for 22 months (or more) before coming here, then her Scottish contributions can be combined with her Irish contributions and she may qualify for Jobseeker's Benefit based on the combined record.

Everyone (either coming to Ireland from an EU or EEA country or going to work in another EU/EEA country should obtain a record of PRSI contributions (or the equivalent) paid in their country as they may help them qualify for benefits. It's EU regulations.

http://www.welfare.ie/EN/Policy/EU/Pages/SocialSecurityRightsIreland.aspx
and
http://www.welfare.ie/EN/Publications/SW4/Pages/s3.aspx
I think the E301 and E104 forms have been changed to U1 and U2, but don't quote me on that one.

Hope this helps.

marti8

mrsbyrne wrote: »

marti once again you insist that you have only expressed your opinion. you have advised the op, and most unwisely imho, in several different posts, to challenge the dept. in a most aggressive manner. please dont deny this as your posts are there for all to see. this has already resulted in her returning to her SW office to enquire about having entitlements transferred from scotland "armed" with" information"(by this she presumably means your advice). this has brought her yet more disappointment as her local office have probably told her, quite correctly, that she will have to take it up with the DHSS in scotland. what do you advise now , marti, that she go back again and "threaten" them with an appeal? also so what if mystic is a deciding officer? nowhere in the rules do i see a ban on deciding officers!lol

Lol, I have offered advice just as others have offered advice. I have offered an opinon just as others have offered an opinion. I never made any reference to transferring payments from Scotland to Ireland. To insist, to threaten to appeal, to demand written refusals is not threatening behaviour - to walk into a social welfare office and to start verbally abusing staff etc etc is, I never once suggested the OP or his cousin do any such thing nor is this what the OP or his cousin have done, to the best of my knowledge.

As for asking whether one poster was a deciding officer, I asked because I was asked whether I was, lol. If that poster is in fact a deciding officer then why don't they enlighten us with their knowledge of the HRC and spell out exactly why, based on the information given by the OP, that the person in question isbeing refused social welfare.

mrsbyrne

marti i give up. you are stating your opinion, to which you entitled, as if it were a fact, proven and beyond doubt. several posters have pointed out with evidence from reliable sources that you are wrong. but still you insist. i think in your heart of hearts that you do know that you are wrong, but simply cannot bear to be seen to back down. ho hum...i just hope the op does not follow any more of your ...advice...;)

mystic

marti8 wrote: »

From the Depts own site:

Habitual residence means you have a proven close link to Ireland. If you have lived in Ireland all your life, you will probably have no difficulty showing that you satisfy the factors in Section 4 which indicate habitual residence.
Residence in other parts of the Common Travel Area will also be counted in considering these factors.


http://www.welfare.ie/EN/Publications/SW108/Pages/2Whatdoeshabitualresidencemean.aspx

If you look at the SW108, there is a disclaimer on the back of the booklet. 'This booklet is intended as a guide only and does not purport to be a be a legal interpretation'. The booklet is out of date (the name of the Department changed last year so there's a clue!!) and you should always check the Operational Guidelines.

As I said in my previous post Habitual Residence isn't simply about being resident in this State, there are other factors to take into account.

Let me give you an example. A spouse of somebody who has been working here comes to Ireland and because of their spouse's income qualifies for a reduced Jobseeker's Allowance. That person would be considered to be Habitually Resident here because of their centre of interest. The fact that they were here 1 day or week is irrelevant.

I told you it was complicated!!

mystic

marti8 wrote: »

Lol, I have offered advice just as others have offered advice. I have offered an opinon just as others have offered an opinion. I never made any reference to transferring payments from Scotland to Ireland. To insist, to threaten to appeal, to demand written refusals is not threatening behaviour - to walk into a social welfare office and to start verbally abusing staff etc etc is, I never once suggested the OP or his cousin do any such thing nor is this what the OP or his cousin have done, to the best of my knowledge.

As for asking whether one poster was a deciding officer, I asked because I was asked whether I was, lol. If that poster is in fact a deciding officer then why don't they enlighten us with their knowledge of the HRC and spell out exactly why, based on the information given by the OP, that the person in question isbeing refused social welfare.

My name is Mystic and I am a Deciding Officer who deals with HRC decisions. She is being refused JA and SWA because she is NOT entitled to it.

marti8

mystic wrote: »

If you look at the SW108, there is a disclaimer on the back of the booklet. 'This booklet is intended as a guide only and does not purport to be a be a legal interpretation'. The booklet is out of date (the name of the Department changed last year so there's a clue!!) and you should always check the Operational Guidelines.

As I said in my previous post Habitual Residence isn't simply about being resident in this State, there are other factors to take into account.

Let me give you an example. A spouse of somebody who has been working here comes to Ireland and because of their spouse's income qualifies for a reduced Jobseeker's Allowance. That person would be considered to be Habitually Resident here because of their centre of interest. The fact that they were here 1 day or week is irrelevant.

I told you it was complicated!!

This is Ireland, there's a disclaimer on everything, lol. Anyway, so are you telling me that an 18 year old Irish national who has never worked but lives here in Ireland has more of an entitlement to JA or SWA than a 19 year old Scot who has already worked in Ireland and now lives in Ireland? If you are correct so be it, I just don't see it that way. And when I look at the HRC I don't see it that way.

A differential can't be made between an Irish citizen living in Ireland and a British citizen living in Ireland when it comes to claiming social welfare. And this is all down to one thing and one thing only, the CTA, Common Travel Area. A differential could made if she was Greek or Maltese or whatever but because she is British that differential can't be made - she has to be treated as though she was Irish. If I'm getting it all wrong then please by all means do tell me where ffs, lol.

mystic

mrsbyrne wrote: »

last week i encountered a polish man who has been here for nearly 5 years, worked at the same job until he was let go in december 2009, lived at the same address constantly brother and 2 sisters all here. his jsb ran out in december and he has just been refused jsa.Why? he does not fulfill the habitual residence condition because he has 100euro in a bank account in poland.Sw say this shows he still has ties with poland. now he will appeal this and probably win his appeal.:(

I agree that disallowing someone for having €100 in a Polish bank account is a bit harsh. There has to be more to it. The reasons would have been stated on the disallowance letter.

1. Is he married?
2. If Yes, is his wife here or in Poland?
3. If he's single, get him to write to the DO asking for a review of their decision. If the decision remains the same, then like you I would imagine he would win his appeal.

By the way, check to see if he returned to Poland for a few months, That would mean that he has broken his links with Ireland and his centre of interest would be Poland, not Ireland.

Hope this helps.

mystic

marti8 wrote: »

This is Ireland, there's a disclaimer on everything, lol. Anyway, so are you telling me that an 18 year old Irish national who has never worked but lives here in Ireland has more of an entitlement to JA or SWA than a 19 year old Scot who has already worked in Ireland and now lives in Ireland? If you are correct so be it, I just don't see it that way. And when I look at the HRC I don't see it that way.

A differential can't be made between an Irish citizen living in Ireland and a British citizen living in Ireland when it comes to claiming social welfare. And this is all down to one thing and one thing only, the CTA, Common Travel Area. A differential could made if she was Greek or Maltese or whatever but because she is British that differential can't be made - she has to be treated as though she was Irish. If I'm getting it all wrong then please by all means do tell me where ffs, lol.[/QUOTE]

BIB 1. Yes. The Irish 18yo is habitually resident as their centre of interest is Ireland as they were born here and lived all their life here. They would be subject to a means test on their parental income http://www.welfare.ie/EN/OperationalGuidelines/Pages/ua_benpriv.aspx
whereas the 19 yo Scot would not.....her centre of interest is not Ireland as she has no family links or ties here, etc., etc. As has already been stated in this thread, '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 Paragraphs 5.3 and 6.1);
to seek employment (rather than to take up an actual job offer). .


BIB 2. Please provide a link to the legislation that shows that. Everyone, be they Irish, Scottish, Greek, Maltese, Nigerian, American, Brazilian, Australian, Russian, and so on has to pass the Habitual Residence condition.

marti8

mystic wrote: »

BIB 1. Yes. The Irish 18yo is habitually resident as their centre of interest is Ireland as they were born here and lived all their life here. They would be subject to a means test on their parental income http://www.welfare.ie/EN/OperationalGuidelines/Pages/ua_benpriv.aspx
whereas the 19 yo Scot would not.....her centre of interest is not Ireland as she has no family links or ties here, etc., etc. As has already been stated in this thread, '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 Paragraphs 5.3 and 6.1);
to seek employment (rather than to take up an actual job offer). .


BIB 2. Please provide a link to the legislation that shows that. Everyone, be they Irish, Scottish, Greek, Maltese, Nigerian, American, Brazilian, Australian, Russian, and so on has to pass the Habitual Residence condition.

She does have family ties here, her cousin is here. I assume she doesn't own a house in the UK. She is in Ireland and has been for months, her centre of interest is now Ireland not the UK. If she remains in Ireland and lives on charity for the next 6 months is her centre of interest then Ireland? She didn't it seems come to Ireland to claim dole while looking for employment. She came here and worked without seeking any dole, when that employment ended she then made an application for dole.

"Bearing in mind the presumption clause in Section 246 (see Part 4), and the reciprocal arrangements with the UK concerning the *Common Travel Area (CTA), for the purpose of this factor periods of residence within the CTA immediately prior to moving to live in Ireland should be treated the same as periods of residence in Ireland. This arrangement applies only to UK citizens and EEA nationals who had retained their centre of interest within the Common Travel Area during these periods." http://www.welfare.ie/EN/OperationalGuidelines/pages/habres.aspx#5.1

To be more correct I should have said any EEA national, not just UK nationals, who have been in the CTA prior to moving to Ireland.

Ireland and the UK have an agreement which predates any EU regulations etc. For decades the "reciprocal arrangements" they speak off have included: access to social welfare, the right to vote in general elctions, free movement (no work permits/visas etc), the possibility to serve in each others armed forces etc etc. This is a special arangement which exists only between Ireland and the UK.

Slightly off topic but if the Dept are now refusing British nationals access to social welfare on par with the right of Irish citizens access to the same I wonder how that in turn impacts on Irish people going to UK? I wonder are they now also being refused social welfare in the UK?

mystic

marti8 wrote: »

She does have family ties here, her cousin is here. I assume she doesn't own a house in the UK. She is in Ireland and has been for months, her centre of interest is now Ireland not the UK. If she remains in Ireland and lives on charity for the next 6 months is her centre of interest then Ireland? She didn't it seems come to Ireland to claim dole while looking for employment. She came here and worked without seeking any dole, when that employment ended she then made an application for dole.
"Bearing in mind the presumption clause in Section 246 (see Part 4), and the reciprocal arrangements with the UK concerning the *Common Travel Area (CTA), for the purpose of this factor periods of residence within the CTA immediately prior to moving to live in Ireland should be treated the same as periods of residence in Ireland. This arrangement applies only to UK citizens and EEA nationals who had retained their centre of interest within the Common Travel Area during these periods." http://www.welfare.ie/EN/OperationalGuidelines/pages/habres.aspx#5.1

To be more correct I should have said any EEA national, not just UK nationals, who have been in the CTA prior to moving to Ireland.

Ireland and the UK have an agreement which predates any EU regulations etc. For decades the "reciprocal arrangements" they speak off have included: access to social welfare, the right to vote in general elctions, free movement (no work permits/visas etc), the possibility to serve in each others armed forces etc etc. This is a special arangement which exists only between Ireland and the UK.

Slightly off topic but if the Dept are now refusing British nationals access to social welfare on par with the right of Irish citizens access to the same I wonder how that in turn impacts on Irish people going to UK? I wonder are they now also being refused social welfare in the UK?

BIB 1. A brother in Scotland would be considered a closer family tie than a cousin in Ireland. I have cousins all over the world but my immediate family live in Ireland. The OP clearly states that she came here in November 2010. That's a maximum of 4 months. In order to develop a centre of interest the OP's cousin would have to been here for more than a few months.

BIB 2. How do you know this? The OP stated the reason her cousin came to Ireland was because the OP's cousin's brother had moved house and had no room for her http://www.boards.ie/vbulletin/showpost.php?p=70784574&postcount=3.

BIB 3. I'm too busy in work dealing with a huge workload to check what the UK are doing. I did have a look at at the DWP site in the UK but couldn't find a definitive answer.

marti8

mystic wrote: »

BIB 1. A brother in Scotland would be considered a closer family tie than a cousin in Ireland. I have cousins all over the world but my immediate family live in Ireland. The OP clearly states that she came here in November 2010. That's a maximum of 4 months. In order to develop a centre of interest the OP's cousin would have to been here for more than a few months.

BIB 2. How do you know this? The OP stated the reason her cousin came to Ireland was because the OP's cousin's brother had moved house and had no room for her http://www.boards.ie/vbulletin/showpost.php?p=70784574&postcount=3.

BIB 3. I'm too busy in work dealing with a huge workload to check what the UK are doing. I did have a look at at the DWP site in the UK but couldn't find a definitive answer.

So, someone who has closer family member abroad rather than in Ireland could never qualify under the HRC? That doesn't make sense. How exactly is the determination made as to how many months are considered "enough" to establish a centre of interest? You're saying 4 months obviously isn't enough....6 months? 8 months? 12 months? 24 months? So, even if this girl is here for a year or two her centre of interest remains the UK because her brother is there?

How do I know what? That she doesn't own a house in the UK? Well, very few 19 year olds own houses - it's an educated guess. If she has no where to live in Scotland and is in Ireland, and has been for months, then how exactly is her centre of interest in the the UK? Centre of interest suggests amongst other things a residence, it appears she doesn't have a residence in the UK.

mystic

This is for Marti8

The only reason I'm still up is because I have a sick child here.....I think he's finally gone asleep.........fingers crossed.

I'm too tired to do the quote thingy so I'll just use the quotes in the old fashioned way - ok?

Quote by you.... 'She didn't it seems come to Ireland to claim dole while looking for employment. She came here and worked without seeking any dole, when that employment ended she then made an application for dole.'

I replied - how do you know that?

You replied

'How do I know what? That she doesn't own a house in the UK? Well, very few 19 year olds own houses - it's an educated guess. If she has no where to live in Scotland and is in Ireland, and has been for months, then how exactly is her centre of interest in the the UK? Centre of interest suggests amongst other things a residence, it appears she doesn't have a residence in the UK.'

Relevance? Where did I mention in my post about the OP's cousin owning a house.

FYI http://www.welfare.ie/EN/OperationalGuidelines/Pages/habres.aspx#5.4

Pasted it in here in case the link doesn't work with bold emphasis on the main points regarding the OP's cousin..

5.4 - Applicant's main centre of interest
An applicant's main centre of interest, at the time of application, must be in the Republic of Ireland.

Consideration of a person's main centre of interest is an important factor in determining 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.
People who are working here but have no particular ties with Ireland may be considered to have retained their centre of interest in another country.

On the other hand, a person who previously lived in another country or countries may now have moved to Ireland on a permanent basis and established a main centre of interest here. For example, a person who has retired from missionary or other service abroad and has chosen to resettle in Ireland should be considered to have his/her main centre of interest here.

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/children etc.),
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
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?

I'm done. I'm going to enjoy my 1 day's annual leave with my sick child.

marti8

mystic wrote: »

This is for Marti8

The only reason I'm still up is because I have a sick child here.....I think he's finally gone asleep.........fingers crossed.

I'm too tired to do the quote thingy so I'll just use the quotes in the old fashioned way - ok?

Quote by you.... 'She didn't it seems come to Ireland to claim dole while looking for employment. She came here and worked without seeking any dole, when that employment ended she then made an application for dole.'

I replied - how do you know that?

You replied

'How do I know what? That she doesn't own a house in the UK? Well, very few 19 year olds own houses - it's an educated guess. If she has no where to live in Scotland and is in Ireland, and has been for months, then how exactly is her centre of interest in the the UK? Centre of interest suggests amongst other things a residence, it appears she doesn't have a residence in the UK.'

Relevance? Where did I mention in my post about the OP's cousin owning a house.

FYI http://www.welfare.ie/EN/OperationalGuidelines/Pages/habres.aspx#5.4

Pasted it in here in case the link doesn't work with bold emphasis on the main points regarding the OP's cousin..

5.4 - Applicant's main centre of interest
An applicant's main centre of interest, at the time of application, must be in the Republic of Ireland.

Consideration of a person's main centre of interest is an important factor in determining 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.
People who are working here but have no particular ties with Ireland may be considered to have retained their centre of interest in another country.

On the other hand, a person who previously lived in another country or countries may now have moved to Ireland on a permanent basis and established a main centre of interest here. For example, a person who has retired from missionary or other service abroad and has chosen to resettle in Ireland should be considered to have his/her main centre of interest here.

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/children etc.),
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
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?

I'm done. I'm going to enjoy my 1 day's annual leave with my sick child.

1 days annual leave? Huh, I thought civil servants got more than that.......Anyway, the only reason I'm still up is because I don't work and can set my own schedule, for now. How do I know that she didn't come to Ireland to claim dole while looking for employment? Because at the very begining the OP stated that she came here and worked, she has already worked, she is now unemployed. It isn't that she didn't work and is now seeking the dole, she has worked.

If someones centre of interest is the country in which they have lived their life then how can any foreign national get social welfare ever in Ireland unless they have lived in Ireland for a longer period than they have ever lived in their own country?

The rules seem to contradict themselves, because it says if someone has permanently moved to Ireland then hey presto it's AOK. Now how on earth is it established whether someone has permanently moved from one country to another? This girl could say she has moved, permanently, to Ireland. Or does one have to be a missionary :rolleyes:

The rules contradict themselves and are ambiguous. They seem to say you can't ever get dole in Ireland if you're a foreign national if you have your closest family abroad but, but...., that's ok if you are are moving here permanently.......But that depends on how long you've lived in Ireland for which there are no set time limits, purely discretionary. What a joke.

Now, this person in question is British and as such falls under the long satnding agrement between the UK and Ireland - the CTA. Periods spent within the CTA are basically considered as periods spent within Ireland even if the person in question wasn't actually living in Ireland. Basically, anywhere you see the word "Ireland", 99% of the time you can replace it with CTA when it comes to social welfare purposes. That's my take on it.

Well, I'll be off to my local CWO tomorrow to apply for SWA, that should be fun Luckily I tick all the boxes and dot all the t's, have all the requested documentation in place and ready to go and most importantly I know my rights. I know what my CWO can do and I know what my CWO can't do. I've dealt with enough of them over the years. I know under what circumstances I can be refused and I know under what circumstances I can't be refused. Unlike, sorry to say, some people who have to jump throw the rings of the ambiguous HRC.

Balagan

I hope I recap correctly

The young woman in question is 19.
She was orphaned at 12.
Her only sibling in Scotland cannot put her up.
Her cousin in Ireland can put her up but cannot afford her upkeep.
She came to Ireland and worked for two months.
She wants to stay here and work here but cannot find a job.

Has she actually applied for JSA and SWA and been turned down or has she been dissuaded from applying?

My two cents worth of advice is that she make her JSA application, of if she has already made it and been turned down, that she appeal and with it put every conceivable document to prove that here is her main centre of interest and that she has no ties, no children, no spouse, no parents, no home, no property, no savings etc., in Scotland. The documentation might also include the following:

Documentary evidence of the circumstances in which her parents passed away

A letter from her brother in Scotland to the effect that he cannot give her accommodation

A reference from her employer here in Ireland and giving the reason she was let go.

A letter from her cousin stating he/she can accommodate her but cannot afford her upkeep

A letter from the young woman herself giving her own personal take on why she desperately wants to remain here with the only relative who is giving her a home

Documentation from Scotland setting out her employment/benefits claiming record

Documentary evidence of what she has done to become part of the community here e.g., library, sports organizations, volunteer work etc.,

Some references from neighbours, those who know her, testifying to her character.

Her application will most certainly not tick all the usual boxes for the habitual residence conditions. That requirement to be here 2 years is one factor but there are others to be considered. It is an unusual case and she should do everything she can to prove that here is her main centre of interest.

I wish the young woman the best of luck and, most of all, hopes she lands a job thus sparing her all this.

bernyh

Excuse me for not reading the whole thread, but i thought I would drop my tuppence in since it kinda pertains to my experience when I moved here in 2004... from Scotland....

As far as I know your "stamp" is moveable from scotland (Scot's call the prsi payments stamps) so as long as you have enough stamps to cover you from previous years you should be entitled to SW.... although in my experience this was a difficult process that took WAY too long.

I moved here in 2004 and started working full time 4 days after I moved, was living with my now husbands family, got prsi number etc and worked happily for 7 months in Ireland, when I was 7 months here I got pregnant with complications so was unable to work from 5 months (12 months in the country) it took them until after my baby was born to sort out my SW, we were living on nothing for that time... but they kept telling me it was the Scottish system that was holding it up, but from day one they told me that the prsi payments I had paid in Uk were enough to cover me here.....

I'd advise to get onto Scotland and find out what prsi/stamp she had paid in previous jobs and ensure that she has sufficient to cover her for here..