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Child Benefit (Habitual Residence) Case 2

Question At Issue:

Whether the appellant may be deemed to be habitually resident in the State for purposes of her Child Benefit claim.

Background:

The appellant came to the State as an unaccompanied minor in September 2002, and joined the rest of her family. The Minister for Justice, Equality and Law Reform granted her permission to remain in the State for a period in line with that granted to her mother and on grounds that she was the dependant of a person who had been granted residency. The appellant got married subsequently and had a child. The Deciding Officer concluded that, as the appellant had formed a separate family unit for the purposes of Child Benefit, her mother’s status could not be taken into account and that the appellant could not be deemed to be habitually resident until such time as a final decision has been made on her status in the State. Her residency status was due for review in March 2006.
The Appeals Officer determined this appeal on a summary basis.

Consideration of the Appeals Officer:

The Appeals Officer noted that the relevant legislation is framed in such a way that an individual is required to rebut the presumption that they are not habitually resident. In its Guidelines dated 4 March 2005, the Department of Social and Family Affairs states that “habitual residence” ‘implies a close association between the applicant and the country from which payment is claimed and relies heavily on fact. The most important factors for habitual residence are the length, continuity and general nature of actual residence rather than intention.

The Guidelines refer to the European Court of Justice having set down a number of factors which are relevant when considering whether someone may be deemed to be habitually resident. Specific reference is made to Judgments in the Di Paolo and Knoch cases. Having examined those Judgments, the Appeals Officer noted that they identified the following points as being relevant in determining habitual residence:

• Close ties with the country where the person has settled and habitually resides

• Where the habitual centre of a person’s interests is located

• The family situation

• The reasons which have led a person to move

• The nature of the work

• Length and continuity of residence before the person concerned moved

• Length and purpose of absence

• The nature of the occupation found in the other Member State

• The intention of the person concerned as it appears from all the circumstances

Having examined the provisions of the governing legislation, and the Department’s Guidelines on the Habitual Residence Condition in conjunction with the relevant ECJ Judgments, the Appeals Officer concluded that the appellant had rebutted the presumption that she was not habitually resident. She was satisfied that the appellant had established that she had close ties with Ireland, both her family of origin and the new family which she and her husband had established all live here. The Appeals Officer concluded that the reasons which had led the appellant to come here and the length and continuity of her residence in Ireland all pointed clearly to the fact that her main centre of interest was in the State. She concluded, therefore, that the appellant must be deemed to be habitually resident.

Outcome:

Appeal allowed.

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