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Child Benefit (Habitual Residence) Case 3

Question At Issue:

whether the appellant may be deemed to have been habitually resident in the State prior to January 2009 for purposes of her claim to Child Benefit.

Background:

The appellant came to Ireland from the Congo, on a date in 2004, and sought asylum. In February 2009, she was given permission to remain in the State until 2012. She made a claim for Child Benefit in April 2009 which was awarded with effect from the date that her permission to remain was granted. Her appeal refers to a request for arrears of payment on grounds that she met the Habitual Residence Condition (HRC) before that date.

Oral hearing:

The appellant advised that she came to Ireland with her three children in 2004 and that she has remained in the State continuously since then. She said she had left the Congo as her children were being ostracized and life had become unbearable. She reported that their father was from Rwanda and said that anyone in the Congo that looked Rwandan was despised. She said she came to Ireland as a friend had told her she would be safe here. She went on to say that she no longer had contact with the father of her children and that, as far as she was aware, he had returned to Rwanda. She reported that her mother still lives in the Congo but that she cannot go back to visit her. She said her life was now in Ireland. The appellant said she had been working as an administrator on a FÁS scheme since October 2009; before that, she had worked in the same position for about a year on a voluntary basis. She said that her children were now in school here and doing very well. She described efforts she had made to integrate into the local community.

Consideration of the Appeals Officer:

The Appeals Officer referred to the legislation which provides that applicants to Child Benefit must be habitually resident in the State in order to qualify for payment. In determining whether a person is habitually resident in the State, account has to be taken of the following:


• the length and continuity of residence in the State or in any other particular country;

• the length and purpose of any absence from the State;

• the nature and pattern of the person's employment;

• the person's main centre of interest, and

• the future intentions of the person concerned as they appear from all the circumstances.

In terms of the duration of residence, the Appeals Officer noted that the appellant had been living in Ireland for almost six years, more than four of which were as an asylum seeker. In relation to any absence from the State, he was satisfied that she had not left Ireland since she came here. In regard to employment, he noted that she had been working for over a year and had worked previously as a voluntary worker while she had not been allowed to take up employment. On the point of her main centre of interest, he was satisfied that her centre of interest was now in Ireland. He considered that it was more difficult to say where her centre of interest was when she first came to Ireland. While she had no obvious ties to Ireland at that time, it appeared also that she could not easily have returned to the Congo which had been her centre of interest up to then. Concerning her future intentions, he was satisfied that it had been her intention to stay from the time she arrived in Ireland. He considered that it was not reasonable to say that she had established a centre of interest in Ireland on her immediate arrival; while he accepted that she had cut her ties with the Congo, he viewed her as having had no significant ties of any kind to Ireland at that time. However, he considered that it was clear from her actions over the following years in relation to employment, her children attending school and her willingness to integrate into the community, that she had established a centre of interest in the State. Her position was recognised by granting her leave to remain here until 2012.

The Appeals Officer examined a submission from the appellant’s solicitor which made three main points on her behalf. Firstly, he argued that that she had suffered financial hardship due to the delay in processing her refugee claim and that it would have been reasonable to expect her claim to have been dealt with within six to twelve months. Secondly, he stated that the appellant would give evidence of similar cases where arrears of payments were made. Thirdly he made the point that the legislation outlined in the Social Welfare and Pensions (No. 2) Act, 2009, does not apply in this case.

In relation to the delay in processing the appellant’s application for refugee status, the Appeals Officer noted that there was no evidence as to the reason for the delay. However, he considered that the time taken in this case did seem unreasonable, although the solicitor’s contention of six to twelve months seemed somewhat optimistic. While acknowledging that he did not have full details of the application, he suggested that processing within two years would be a more reasonable expectation. In relation to the contention that other applicants in similar circumstances had received arrears of payments, he noted that there was no evidence of this on file, nor had any evidence of this been produced at the oral hearing.

He drew attention to the fact that the legislation on HRC, as provided for in the Social Welfare and Pensions (No. 2) Act, 2009, did not apply in this case as the appellant’s application for Child Benefit was received in the Department in April 2009, while the legislation came into effect from 21 December 2009. Accordingly, the only issue to be determined was the date from which the appellant could be considered to be habitually resident. While the Department had taken the date from which she was allowed to remain in the State, the Appeals Officer regarded this as unreasonable in view of all the other factors outlined, as well as the fact that her circumstances did not change in any other way on that date. He concluded that while habitual residence has to be established with reference to the five factors outlined, Section 246 of the of the Social Welfare Consolidation Act, 2005 must also be considered; this contains a presumption that until the contrary is shown, a person is not habitually resident in the State unless they have been present in the State or in any other part of the Common Travel Area for a continuous period of two years. He was not satisfied that the appellant had rebutted this presumption for that two year period. He noted, however, that this presumption no longer applies after two years. In view of the fact that by that time, the appellant had been in the State continuously since she arrived and could reasonably have expected a decision on her application for asylum by that time, the fact that she had later shown her intention to establish a pattern of employment and to integrate into the local community, he concluded that she could be regarded as habitually resident in the State with effect from 1 January 2007.

Outcome:

Appeal partially allowed.

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