PILA: Belonging to Irish society in a social welfare context

This post is contributed by Jo Kenny, Legal Officer of PILA (Public Interest Law Alliance – a project of FLAC) and Saoirse Brady, FLAC’s Policy & Campaigns Officer

In May 2004, the Irish government introduced a new concept of “belonging” to Irish society in the context of social welfare law.  In light of EU enlargement, the government was concerned that citizens from the ten EU accession states would come to Ireland as “welfare tourists” and avail of higher social security payments. Thus, it introduced the Habitual Residence Condition (HRC).  This meant that any person coming to live in Ireland would only be entitled to certain social security payments if she or he had been present in the Common Travel Area for two years.

However, the EU Commission recognised that it was easier for Irish and British people to satisfy this condition than for people from other EU Member States.  This situation was contrary to the EU principle of freedom of movement, so Ireland was threatened with infringement proceedings.  These proceedings were dropped in 2006, as the Department of Social and Family Affairs recognised that (under Regulations 1408/71 and 574/72) EU migrant workers did not have to satisfy the HRC and were entitled to the same social security benefits as their Irish counterparts.

The law was changed in 2007 to reflect this and five criteria to determine habitual residence were taken from a decision of the European Court of Justice (Case C-90/97 Swaddling v Adjudication Officer).  A person now has to demonstrate that Ireland is his or her main “centre of interest”; in other words s/ show that she or he has formed a social attachment to Ireland which is stronger than with any other state, including his or her home country.  A person can show this attachment to the State by gaining employment, forming relationships here, having children in school, registering with a local doctor and integrating into the local community. It is not permitted to impose a two-year period in applying the HRC.

But what about those who are not currently working and do not have EU worker status?  EU citizens who came here to seek work or have lost their jobs sometimes find it difficult to access any social supports.  Indeed there is a perception that people from other EU States who worked here during the Celtic Tiger years will leave and go “home” but this does not take into account that many of these people actually consider Ireland to be their home.  The figures issued by the Central Statistics Office, taken from the Live Register for October 2009, indicate that of the 76,304 non-Irish nationals signing on for Jobseekers Benefit, 41,663 of those are people from the EU accession countries.  People are not automatically returning to their country of origin if they become unemployed.  They may have reasons to stay here as their children may be in school, they may have formed relationships with people living here or they may own property.  All of these facts can be used to establish habitual residence in Ireland and should therefore allow people to qualify for social security assistance.  However, there is anecdotal evidence to suggest that people are being turned away or refused payments because they are no longer working and have been told to return to their home country.

In cases where a citizen from one of the twelve EU accession States (both 2004 and 2007) becomes destitute and cannot afford to return home, the Reception and Integration Agency will assist him or her by providing a flight home.  By September 2009, 510 people had been repatriated: 302 (60 per cent) to Romania, 74 (15 per cent) to Poland, 38 (7 per cent) to both Slovakia and Latvia and 22 (4 per cent) to the Czech Republic.

But instead of sending people home, it should be recognised that many of these people form part of our now ethnically diverse Irish society.  The European Court of Justice has on occasion used language of social solidarity, urging host states to look after EU citizens who find themselves in difficulty (as in the Grzelzyck case C-184/99 and the recent Advocate General’s Opinion in the Teixeira case C-180/08). Yet social solidarity seems to extend only to temporary financial difficulties and the European Court of Justice considers it important for EU nationals seeking to rely on social solidarity to show that they have integrated into the host state. ‘Proportionality’ might be the keyword for decision-makers applying the HRC.

Finally, it is interesting to note that in justifying welfare residence tests, the English courts have relied on the Advocate General’s opinion (in Trojani C-456/02) that “persons who depend on social assistance will be taken care of in their own state”. Underlying this approach may be a deep-seated belief that when it comes to social welfare, states should look after their own: those who “belong”. This sits uneasily with the imperative to show social solidarity to other EU nationals who run into financial problems.