You are here: Home >> Case Studies >> Unemployment >> Jobseekers Allowance - Formerly Unemployment Assistance 

Jobseekers Allowance (Habitual Residence) - Case 2

Question At Issue:

Whether the appellant may be deemed to be habitually resident in the State for purposes of his Unemployment Assistance claim.

Background:

The appellant came to Ireland in April 2004 to join his wife and children. He had been granted a visa under the Family Reunification Scheme. He and his wife separated subsequently. He claimed Unemployment Assistance in March 2005 but his claim was rejected as the Deciding Officer concluded that he was not habitually resident in the State. The grounds cited for that decision were that he had not lived in Ireland or other parts of the Common Travel Area for the previous two years or more, that he did not hold a current valid residency permit to remain in Ireland and that, from the evidence submitted, there was nothing to substantiate that he was habitually resident in the State.

Oral Hearing:

The appellant attended and was represented by a solicitor and by counsel.

Counsel stated that the appellant’s wife was granted refugee status and permission to remain in the State in 2003 and that she had enquired about the family reunification scheme with a view to having the appellant join her. On advice from the Department of Justice, Equality and Law Reform, an application was pursued via the Irish Honorary Consul in Romania and a visa was granted. He reported that the appellant arrived in Ireland in April 2004 and was granted a work permit and permission to remain for one year. Some time later, following the loss of his identification card, confusion arose as to the nature of his status in the State and the application made to the relevant Irish Honorary Consul. These issues had been the subject of a High Court Judgment, and a copy of that Judgment was submitted.

The High Court held the appellant’s application to the Irish Honorary Consul was an application under Section 18 of the Refugee Act, 1996, a provision which refers to applications from members of a refugee’s family. The Court held that that appellant was entitled to a decision from the Minister of Justice, Equality and Law Reform and that the Minister was estopped from revisiting the question as to whether the appellant was a member of the family of (person named). The Court found also that the Minister was in significant delay in dealing with the application under the relevant provisions of the Refugee Act and that, until such a decision was made, it would be inappropriate to prevent the appellant from remaining in the jurisdiction or from working. Counsel pointed out that the consequence of the High Court Judgment was that the Minister of Justice, Equality and Law Reform was left with very narrow grounds for refusing the application, namely any issue of public interest or an issue of national security. He stated that the appellant’s wife had been granted permission to remain in the State indefinitely and as such the same rights now applied to the appellant. He contended that the fact that the couple had separated did not affect the issue and that the appellant was legally in the State. He argued that, as a consequence, one of the grounds for the decision that the appellant could not be deemed to be habitually resident was invalid.

The Appeals Officer referred to the other grounds cited by the Deciding Officer and said that there was a need to address these points also. The appellant submitted that he had been continuously resident in the state since April 2004. He stated that he had made an application for Unemployment Assistance in October 2004 and believed that his claim was successful. He said that before payments commenced, however, he separated from his wife and did not have a permanent address; for that reason, payment was not made. Counsel stated that the relationship between the appellant and his wife remained good and that the appellant was in regular contact with the children. He reported that many members of the appellant’s extended family were also living in Ireland. The appellant stated that while he was now free to look for work, he considered that his English was poor and that this was an impediment in his search for work. He stated that he hoped to secure a place on a FÁS course to help improve his language skills.

Consideration of the Appeals Officer:

The Appeals Officer noted the Deciding Officer’s conclusion that the absence of a valid permit to remain in the State was a basis for determining that the appellant did not fulfil the habitual residence condition. He considered, however, that the effect of the High Court Judgment was to confirm that the appellant was legally in the State and that he was legally permitted to remain. He accepted that the grounds on which that permission could be withdrawn were so limited as to make it unlikely that his status would be altered. He noted also that the appellant had been deemed to have fulfilled the habitual residence condition initially, in relation to his Unemployment Assistance claim, on the basis that he held a valid permit to reside in the State as the spouse of someone who had been granted refugee status. He concluded that the effect of the High Court Judgment was to restore to the appellant his status of being resident in the State and, therefore, all advantages accruing from such status. Accordingly, he was satisfied that, at the time of making his claim for Unemployment Assistance in October 2004, the appellant’s status was such that he met the habitual residence condition and that he continued to do so.

Outcome:

Appeal allowed.

End of Document