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Child Benefit (Habitual Residence) Case 1

Question At Issue:

Whether the appellant, whose partner is employed in Ireland, may be regarded as habitually resident in the State for purposes of her Child Benefit claim.

Background:

The appellant claimed Child Benefit, from June 2004, in respect of her two children. Her claim was rejected on grounds that she was not habitually resident in Ireland. The Deciding Officer concluded that as she had not resided in the State or Common Travel Area for at least two years and no decision had been made on her refugee status, she could not be deemed to be habitually resident in the State.

Oral Hearing:

The appellant attended the hearing unaccompanied. She stated that the family was renting an apartment, and provided a written statement from the landlord. She submitted a letter from the local housing authority in relation to a joint application she and her partner had made. She also submitted a letter from a construction company stating that her partner had been employed by them since October 2004, and a reference from his supervisor stating that he regarded him as honest and reliable. The appellant also submitted a letter from the teacher at the school her son attends, stating that he was making good progress.

The appellant reported that the family had lived in England between April 2002 and March 2003. They came to live in Ireland in April 2004. The appellant reported that she had been a refugee but, following the accession of the Czech Republic to the European Union in 2004, this was no longer the case.

Consideration of the Appeals Officer:

The Appeals Officer observed that the appellant was not a refugee with effect from 1 May 2004. He noted that Child Benefit is a ‘family benefit’ under EU legislation and that this confers rights on ‘workers’ who are EU nationals, including citizens of new Member States that joined in May 2004. He referred to the fact that an EU family resident in Ireland may qualify for Child Benefit if one of the parents is a ‘worker’, which means that the parent is in insurable employment or self-employment in Ireland. On this basis, the habitual residence condition does not apply to EU workers in the context of Child Benefit. As the appellant’s partner commenced employment in October 2004, he concluded that the habitual residence condition did not apply from that date, and that the appellant was entitled to payment provided the other conditions for entitlement were satisfied. In regard to the earlier period (between June 2004 and October 2004), he concluded that the habitual residence condition applied. He noted that the appellant was a refugee at the time she came to Ireland, before her status changed in May 2004. He concluded that the appellant had been in Ireland for only a short time when she made her Child Benefit claim and, for that reason, he did not consider her centre of interest to have been Ireland at that time. Accordingly, he did not consider her to have been habitually resident in the State during the period between June 2004 and October 2004

Outcome:

Appeal partially allowed.

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