Social Welfare Law in the Public Interest: FLAC Casework on the HRC 16 April 2010 Pila Conference

1. Social Welfare Law in the Public Interest: FLAC Casework on the HRC16 April 2010Pila Conference FLAC – the Free Legal Advice Centres

2. What is FLAC? • An independent human rights organisation • campaigning for equal access to justice for all, through advocacy and strategic litigation • to contribute to the eradication of social and economic exclusion • valuing the use of law as a way to achieve change FLAC

3. FLAC’s work in the Area • Information Line • Queries from general public • Queries and referrals from other bodies including CICs, NGOs, advocates • Advice Centres • Casework • Policy submissions and reports FLAC

4. Child Benefit Campaign • FLAC identified a potential violation of children’s rights by denying Child Benefit to children whose parents did not satisfy HRC • One of the main groups affected by this change in the law were asylum seekers and those seeking other forms of protection • Political campaign developed into one of strategic litigation FLAC

5. Habitual Residence Condition (HRC) • Introduced on 1 May 2004 • EU enlargement • To prevent ‘welfare tourism’ • British government introducing residency condition • Applied to: • All means tested allowances • Child Benefit FLAC

6. Introduction of HRC • Social Welfare (Miscellaneous Provisions) Act, 2004 (Section 17)(Commencement) Order, 2004 • Presumption that person is not habitually resident if present in the State or Common Travel Area for a “substantial continuous period” less than 2 years • Onus is on applicant to rebut presumption FLAC

7. EU Concerns about HRC • 22 December 2004 the EU issued infringement proceedings against the Irish government • Prohibited freedom of movement • Indirect discrimination based on nationality • Proceedings dropped in April 2006 FLAC

8. 2 Year Residency Requirement • Officials from DSFA met with members of the Commission in May 2005 • “2 year presumption contained in national legislation is not a determining factor” (Review of the HRC carried out by the DSFA in 2006) • Considered other factors set down by European Court of Justice FLAC

9. European Code of Social Security • Ireland is a signatory to the Code and its 32nd report to the Council of Europe the Irish government stated: • “Ireland is aware that the relevant jurisprudence of the European Court of Justice precludes reliance on any specific duration of residence (e.g. two years) for the purposes of establishing habitual residence and has ensured that no such specific period is the determining factor in any HRC decision”. FLAC

10. Irish Legislation • Section 246 of the Social Welfare Consolidation Act 2005 (Principal Act) • Section 246 of Principal act amended by • s. 30 of the Social Welfare and Pensions Act 2007 (Swaddling criteria put on statutory footing) • ss. 186D and 161G of Social Welfare and Pensions Act 2008 (HRC applied to Domiciliary Care Allowance and Blind Allowance) • S. 15 of the Social Welfare and Pensions (No. 2) Act 2009 (Certain categories of person excluded from satisfying HRC) FLAC

11. Swaddling Criteria • Case C-90/97 Swaddling v. Adjudication Officer • (a) length and continuity of residence in the State or in any other particular country; • (b) length and purpose of any absence from the State; • (c) nature and pattern of the person’s employment; • (d) person’s main centre of interest; and • (e) future intentions of the person concerned as they appear from all the circumstances FLAC

12. Operational Guidelines for Decision Makers • Issued in June/July 2008 • Blanket policy to refuse social assistance payments to asylum seekers • “Such persons, while awaiting decisions on their applications or who have appealed a refusal of refugee status, cannot satisfy either the habitual residence condition or the normal residence condition for any DSFA payments”. • Cited Supreme Court decision Goncescu and others-v-Minister for Justice, Equality and Law Reform (July 2003) FLAC

13. Reasons Given for Refusals • Status in Ireland remains undecided • Future intentions to remain here are uncertain • Centre of interest is not Ireland • From the evidence produced to date there is nothing to substantiate habitual residence in the State • Similar decisions do not set a precedent • Reliance on Goncescu case • Distinction made between a “legal right to reside, not mere presence only”. FLAC

14. Initial Response to Refusals by Social Welfare Appeals Office • Inconsistency in decisions by Appeals Officers but some relied on following decision of Chief Appeals Officer (CAO) which said that an asylum seeker or person seeking another form of protection could be found habitually resident • In 2007 the CAO held: “It seems to me therefore, that the failure of the State to provide for the expeditious hearing of asylum appeals, thereby giving rise to the artificial status of entitled to remain pending appeal, should not be used as a reason for penalising appellants who can exercise no control over the timescale within which their artificial status will be finally determined.” FLAC

15. FLAC’s argumentsagainst refusals • Each case should be considered on its own individual merits • Similar cases should be treated alike to ensure consistency • Goncescu did not deal with social welfare nor habitual residence • Asylum seekers legally present in the State and given temporary residence certificate • Guidelines ultra vires (outside the powers of) the legislation at the time as asylum seekers not specifically excluded FLAC

16. Reviews by CAO • In 2008 four asylum seekers were found habitually resident and granted a payment on appeal but the Department of Social and Family Affairs refused to make payment • The Department sought a review of these decisions by the CAO under section 318 of the Principal Act • These appeals had been taken by OPEN, Integrating Ireland and FLAC • In five further similar appeals where a negative decision was reached, FLAC sought a review by the CAO FLAC

17. CAO’s decisions • In all nine decisions the CAO found in favour of the appellant. He held: • Individual circumstances must be taken into account • “The facts of the matter are that the Goncescu case did not have a social welfare relevance and that the judgment pre-dated the introduction of the habitual residence legislation”. • The legislation did not exclude any category of persons from accessing social welfare payments • AG’s advice to Department stated that events which occurred during time in asylum process could count towards habitual residence FLAC

18. Judicial Reviews • JR against the HSE in respect of an asylum seeker who was granted Blind Allowance on appeal but was subsequently not paid (July 2008) • JR against the DSFA to pay Child Benefit to an asylum seeker who successfully appealed the rejection of her initial application but was refused payment during the CAO review process • Both cases were settled out of court and payment made FLAC

19. Social Welfare and Pensions (No. 2) Act 2009 • In December 2009 an amendment was introduced to exclude all individuals in the asylum, leave to remain or subsidiary protection processes from being able to satisfy the HRC • Introduced one week after the CAO’s final set of decisions • “Right to reside” test also introduced • FLAC is analysing the new provisions • Will produce a factsheet on “right to reside” • Potential challenges to the new legislation FLAC

20. Conclusions • Legislation was guillotined through the Dáil without any debate although questioned in the Seanad. • CAO took sensible approach which would allow for consistency and fairness • Only individuals with a connection to the State would qualify as they would still have to satisfy the various factors of HRC • Challenge of test cases is that the Government in certain instances can amend legislation to get its preferred result FLAC

21. More Information • See our website www.flac.ie • Briefing Notes on the HRC and CAO’s decisions August and December 2009 • Submission to Irish Human Rights Commission: FLAC concerns on application of Habitual Residence Requirement • FLAC news FLAC