Foilsiú
Operational Guidelines: For Deciding Officers and Designated Persons on the determination of Habitual Residence
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ireland / United Kingdom Social Security arrangements from 1 January 2021
The European Union and the United Kingdom agreed a Trade and Cooperation Agreement which contains a Protocol on Social Security to take effect from 1 January 2021. The Protocol provides for a wide range of social security issues into the future. On the 31 December 2020, the Convention on Social Security agreed between Ireland and the United Kingdom was commenced. Together these Agreements ensure, that all existing social security arrangements for Irish and UK citizens are maintained into the future. Ireland as an EU Member State, will extend on a unilateral basis the advantages of the Convention to Union citizens, as required.
For Brexit-related information see:
For information on social welfare entitlements see:
This manual is intended to provide a comprehensive guide to aid understanding of the Habitual Residence Condition (HRC). The guide aims to provide detailed information for Deciding Officers and Designated Persons on the legislation underpinning the HRC and how it should be implemented.
The term habitually resident is not defined in law, but it generally conveys a degree of permanence in relation to where a person lives. That can be established looking at a person’s residence history, employment and family situation as well as their future intentions. However, it should also be borne in mind that a person may be regarded as habitually resident here even though they may not have lived here previously. This could include people who are programme refugees but it could also encompass others who have come here with the clear intention of living here permanently.
The HRC is assessed at the time a person first claims a payment. However, that assessment may be reviewed at any time as the legislation requires that the condition continues to be satisfied throughout the duration of a claim.
The HRC consists of two parts. The first requires that a person has an established right of residence in this country. This right of residence must be “unconditional” in the sense that it does not preclude the person from getting social welfare payments. In this regard, it is important to remember that the right of residence for social welfare purposes is set out in social welfare legislation (see details below), and it is possible for someone to have a right to live here for other purposes, but is not regarded as having a right to reside for the purpose of receiving social welfare payments.
The second part of HRC requires an assessment of a person’s situation and intentions using the specific factors outlined in the legislation. It should be noted that those factors are not exclusive and other information considered relevant may also be used in arriving at a decision. Unless a person satisfies both parts of the condition they cannot be regarded as habitually resident in this country.
The legislation providing for the Habitual Residence Condition is contained in Section 246 of the Social Welfare Consolidation Action 2005 (as amended). However, Deciding Officers and Designated Persons must also have regard to S.I. No. 548/2015 - European Communities (Free Movement of Persons) Regulations 2015, which deals with the right of residence for EU/EEA citizens and their families. This legislation is contained in Appendices 1 and 2 respectively.
A person must be regarded as habitually resident in the State in order to receive the following payments:
Payments marked * are regarded as Family Benefits under EU Regulations on the Coordination of Social Security Systems (Regulation 883/2004). Where these regulations apply, usually in the situations where a person is employed or self-employed here, they are exempt from satisfying the Habitual Residence Condition.
Supplementary Welfare Allowance (**) is regarded as a social advantage for the purposes of Article 7 of EU Regulation 492/2011 (Free Movement of Workers). Under these regulations those who retain workers status are exempt from satisfying the Habitual Residence Condition when claiming this payment. More information on workers status and the associated rights are explained in Section 8.
The HRC does not extend to the provisions regarding an increase for qualified dependants (for example, spouse and children), that is, qualified dependants are not required to satisfy the HRC in their own right. So it is not necessary to apply HRC to IQAs and IQCs.
Legislation precludes certain categories of people from accessing social assistance payments. These include EU citizens and their families who have been resident here for less than 3 months, where they have not been employed or self-employed during that period, and those whose right of residence is based on the fact that they have come to Ireland seeking work. It should be noted that such exclusions do not apply to exceptional needs/emergency payments.
Those holding Irish citizenship have an unqualified right of residence in Ireland. This includes those who may have been born in other countries but are now naturalised Irish citizens. UK nationals also have an unqualified right of residence under the Common Travel Area agreement.
EU Treaties provide, subject to conditions, for free movement throughout the Union. Those conditions are set out in Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. That Directive was transposed into Irish Law by way of Statutory Instrument 548/2015, European Communities (Free Movement of Persons) Regulation 2015. That legislation should be the basis on which decisions in relation to right of residence for EU/EEA citizens and their families should be made.
An EU/EEA citizen may reside in the State for a period that is longer than 3 months if he or she:
Some guidance on the assessment of “sufficient resources” is contained in Section 6.
Where a person ceases to be in employment or self-employment they can continue to have that status where:
The legislation defines two classes of family member: a qualifying family member and a permitted family member.
For this purpose a person, irrespective of his or her nationality, is a qualifying family member of a particular Union citizen where the person is:
under the age of 21, or
a dependent of the Union citizen, or of his or her spouse or civil partner, or
Where a person is claiming to be a dependent relative it must be established that such dependency already existed in the home country before the relative moves to Ireland.
This paragraph applies to a person who, irrespective of his or her nationality, is a member of the family (other than a qualifying family member) and who in the country from which the person has come:
or
A non EU/EEA citizen who wishes to be regarded as either a qualifying family member or a permitted family member is advised to apply to Immigration Service Delivery (ISD) for a decision that he or she be treated as such for the purposes of establishing a right of residency. It should be noted that the family member’s right to reside is conditional on the Union citizen continuing to exercise their rights under the EU Treaties – for example, if the Union citizen leaves the country, the family member will generally cease to have the right to reside (but see Section 5 below for some exceptions).
Where a Union citizen dies or departs from the State and, at the time of his or her death or departure, he or she had a right of residence in the State a family member, who is a national of a Member State, retains the right of residence that he or she enjoyed at the time of the Union citizen's death or departure.
Where a Union citizen dies and, at the time of his or her death, he or she had a right of residence in the State a family member who is not a national of a Member State may, where he or she has been residing in the State as a family member of the Union citizen for at least one year before the death, continue to reside in the State on an individual and personal basis.
Where a Union citizen dies or departs from the State and, at the time of his or her death or departure, he or she had a right of residence in the State under these Regulations, and his or her child, being resident in the State, was enrolled in an educational establishment in the State for the principal purpose of studying there (10) , then the surviving parent, irrespective of nationality, will be entitled to reside in the State until completion by the child of the course of studies or training concerned. The conditions applying to this scenario are as follows.
The person must:
Where the marriage or civil partnership of a Union citizen is dissolved or annulled and, at the time of the dissolution or annulment he or she had a right of residence, a family member who is a national of a Member State shall retain the right of residence that he or she enjoyed at the time of the dissolution or annulment.
Where the marriage or civil partnership of a Union citizen is dissolved or annulled and, at the time of the dissolution or annulment he or she had a right of residence in the State, a family member who is not a national of a Member State may, subject to conditions, retain a right of residence in the State on an individual and personal basis.
These conditions are as follows:
The Minister for Justice is satisfied that:
the agreement or the court order requires access in the State to the child, and
the right of residence of the spouse or civil partner is for as long as is required to give effect to that access
The legislation does not define when a person may be regarded as having sufficient resources so as not to be a burden on the social assistance system.
While an application for social assistance may be an indication that someone does not have sufficient resources and so on, that application may not be used as the sole reason for a negative decision on right of residence. Article 1(3) of SI 548/2015 provides that in considering this question you may have “regard” to a claim.
Advice from the EU Commission (11) in this regard focusses on the likely duration of a claim, the personal situation of the applicant and the cost of the benefit and suggests the following points should be considered.
In addition, the DO may consider if the circumstances are exceptional, or if it is likely that many others might be in a similar situation.
However, where it can be established that a person has entered the State to avail of the social assistance system and is not intending to integrate themselves into the labour-market it would be legitimate to determine there is no right of residence without the need for a detailed assessment of their situation along the lines outlined above. (12)
Once a person has a right of permanent residence, they no longer have to satisfy us that they are not an unreasonable burden on the social assistance system.
An EU citizen will qualify for a right of permanent residence after 5 years legal residence in the country. Continuity of residence during those 5 years is not affected by temporary absences not exceeding 6 months in a 12 month period, absences of a longer duration for military service or one absence of 12 months for issues such as pregnancy and child birth, serious illness, study or a posting to another Member State or Third Country.
A person may also qualify for permanent residence where they have reached pension age or taken early retirement without being resident here for 5 years. In order to qualify the person must have been resident for at least 3 years and been employed or self-employed for at least the previous 12 months.
A person may also qualify for permanent residence where they have lived here for 2 years and cease employment/self-employment as a result of permanent incapacity or are permanently incapacitated as a result of an occupational injury/disease entitling them to a pension or benefit payable in whole or part by this State.
There are two main exceptions where the HRC is not applied. These relate to situations where EU Regulation 883/2004 on the Coordination of Social Security Systems and EU Regulation 492/2011 on freedom of movement for workers within the Union apply.
As outlined in Part1 paragraph 2 certain payments covered by the HRC are also regarded as family benefits under EU regulations on the coordination of social security systems. These regulations give those from other Member States who are in employment or self-employment here, or in some circumstances, receiving a contributory pension from here, an entitlement to family benefits, including for children not resident here, without the need to satisfy the HRC. The Regulations set out the procedure to be followed where there may be entitlements from more than one Member State.
They must, of course, satisfy any other qualifying conditions provided for in Irish legislation associated with these payments.
This regulation deals with freedom of movement for workers and Article 7 requires that workers coming from other Member States enjoy the same social and tax advantages as national workers. In Ireland the only payment regarded as a social advantage is Supplementary Welfare Allowance. Accordingly, those who have been in employment here, even for short periods, can qualify for Supplementary Welfare Allowance without the need to satisfy HRC. Where the employment lasts for less than 12 months, that entitlement exists for up to six months, that is, for as long as the person retains worker status under the residence provisions.
As this particular Regulation deals with discrimination based on nationality between workers as regards employment, remuneration and other conditions of work and employment, it does not apply to the self-employed. Accordingly, the exception from HRC in so far as Supplementary Welfare Allowance is concerned does not apply to self-employed people.
Non EU/EEA Nationals with permission to reside will generally fall into two categories; those seeking/granted refugee or similar status and those with permission to reside for employment or other reasons. Queries relating to the former may be directed to the International Protection Office (formerly ORAC) at www.ipo.gov.ie or by phone to 01-6028002, 01-6028168, 01-6028039, 01-6028170.
An asylum seeker is a person who has applied to the International Protection Office (formerly Office of the Refugee Applications Commissioner) for recognition as a refugee in accordance with the Refugee Act 1996 or the International Protection Act 2015 and whose application has yet to be determined. Section 246(7) of the Social Welfare Consolidation Act 2005 (as amended) provides that such a person cannot be regarded as habitually resident and as such may not access standard social assistance payments.
However, asylum seekers and similar groups living in Direct Provision Centres (or similar centres) receive a Daily Expenses Allowance; this is not subject to HRC.
Section 246(8) provides that where a person’s application for refugee status is granted, they can only be regarded as habitually resident from the date that status is granted. No payment may be made for any period prior to that date.
In practice, for most refugees, their centre of interest is Ireland and detailed enquiries regarding employment, residence and so on should not be required unless there is evidence that the person has not lived continuously in Ireland since refugee status was granted.
It should also be noted that recognition of refugee status by an EU Member State imposes an obligation to provide social assistance within that Member State only. It does not create an entitlement to social assistance in any other Member State.
A person who does not satisfy the conditions to be recognised as a refugee may be granted subsidiary protection by the Minister for Justice and Equality under the provisions of the European Union (Subsidiary Protection Regulations) 2013, the European (Eligibility for Protection) Regulations 2006 or the International Protection Act 2015. This status gives the person similar rights to that of a refugee.
In terms of Social Welfare legislation the same provisions applying to asylum seekers apply here, that is, a person may only satisfy the habitual residence condition from the date subsidiary protection is granted and no payment may be made from any earlier date.
Persons who, following a decision of the European Council, have been granted temporary protection as part of a group of displaced persons and who have a right to reside under Section 60(6) of the International Protection Act have a right to reside under the habitual residence provisions. They are entitled to avail of social welfare payments on the same basis as an Irish citizen while permission remains in force.
A number of persons may be allowed entry to the country as programme refugees in the context of a resettlement programme under Section 24 of the Refugee Act 1996 and Section 59 of the International Protection Act 2015.
In accordance with Section 246(9), a determination as to such person’s habitual residence is required. In practice and given the particular circumstances of such cases it can be assumed, without the need for detailed enquiries in relation to residence, employment and so on, that their centre of interest is Ireland from the date of their arrival here.
Where a person does not succeed in an application for refugee status or subsidiary protection the Minister for Justice and Equality may grant the person Temporary Leave to Remain.
A full investigation of the habitual residence criteria may be required in some of these cases particularly where there is insufficient information as to their whereabouts while their temporary leave application was being considered.
As with refugees and subsidiary protection, a person may not be regarded as habitually resident for any period prior to the date temporary protection is granted and no payment may be made for any period prior to that date.
Family members of Refugees (or similar categories as set out above) who are given permission to enter the State for family reunification under the International Protection Act should generally satisfy HRC, in the same way as refugees and people granted subsidiary protection.
Non EU/EEA nationals who wish to work or live in Ireland must obtain permission from ISD. There are different categories of permissions depending on the reasons a person wishes to come to Ireland. Deciding Officers and Designated Persons need to take particular care to verify the status and conditions attached to these permissions.
When the Minister for Justice and Equality grants permission to a non-EU national to be in this State, a letter is issued to the client awarding the permission and laying out the conditionality attached. The client is instructed to bring the letter to ISD (if living in the Dublin area) or to the local Immigration Garda (if living outside Dublin) where the permission to be in the State is registered on the Department of Justice and Equality and GNIB computer systems. The Irish Residence Permit is applied for and the client’s passport is stamped. The client must comply with these instructions otherwise the permission is not valid. The client must carry the Irish Residence Permit with them at all times. Failure to do so is an offence under the Immigration Act but does not affect the right to reside.
Full details of the various immigration stamps issued by ISD are set out in Appendix 5. This information is regularly updated by ISD on their website, so check you are using up to date information. Note, however, that the information on the website does not always contain full information on the conditions attached to various immigration stamps, so you may need to obtain the letter awarding the permission and setting out the conditionality attached to it.
Where the status of the person is clear from the stamp, you may be able to confirm that the person has been granted a right of residence based on this alone. However, it is recommended that the DO/DP obtains the letter awarding the permission and setting out the conditionality attached, as there may be specific conditions in the letter which are not obvious from the Stamp, and/or are not covered by the general information on the ISD website.
In cases of doubt, the DSP has two staff members seconded to GNIB who can assist.
An EU Stamp 4 FAM is not of itself determinative of whether a third country national family member of an EU citizen has a right to reside in the State.
The Stamp 4 EU FAM is an administrative stamp which is awarded to persons in different circumstances and therefore does not automatically disqualify a third country national family member of an EU citizen from social assistance. DOs/DPs should not determine a person’s right to reside solely on the basis of being a holder of an EU Stamp 4 FAM. The circumstances of each case and the basis and conditions under which the holder is exercising his or her right to reside should be established.
Section 246(4) of the Social Welfare Consolidation Act 2005 (as amended) incorporates into Irish law five factors set down by judgements of the Court of Justice of the EU which must be considered in determining whether a person can be regarded as habitually resident in this country. With all cases involving HRC the question to be determined is whether, assuming a right of residence is established, at the time a person claims a payment their centre of interest is now in Ireland. That can be determined by looking at a person’s previous attachment to this country as well as their future intentions. However, it should be noted that the former may not always be present, but a person could still be regarded as habitually resident if there is strong evidence as to their future intentions in relation to their residence here.
The five factors outlined in legislation are as follows:
It must be noted however that these factors are not exhaustive, and a Deciding Officer/Designated Person is not precluded from using any other evidence considered relevant to a case in deciding on a claim.
No one factor is decisive and it is not necessary for a person to score strongly on all five factors in order to get a positive decision. The first three points are strong indicators that a person is habitually resident but equally the person could qualify on just the last point if they can show strong evidence as to their future intentions as regards residence here.
In making a decision it is important that the available information is as comprehensive as possible and if considered necessary additional information to that provided on the HRC1 should be sought.
The following are some suggestions on how to approach the individual factors.
While residence is an important element in satisfying the condition it cannot be the sole determining factor. It is true that the longer a person lives in a country the more likely they are to lose ties with their home country. On the other hand, a person who has been here for some time but whose close family ties exist in another country and who possibly maintains a home there may retain their main centre of interest in that country. Periods spent in prison here should not be considered as contributing towards a person’s continuity of residence here.
Where a person has been here for a short period consider why they have come to Ireland. For example, if a person comes for any of the following reasons there are serious questions as to their habitual residence in this country.
However, a short period since arrival in Ireland does not automatically prove that a person’s centre of interest is abroad. In this regard it is important to consider what ties the person maintains with a previous country and what actions they have taken here to support their contention that Ireland is now their centre of interest, for example have they taken a long lease on a rental property or purchased property here, did they dispose of property in another country/sell their belongings, do they maintain a bank account abroad, are spouses/children resident in another country.
Habitual residence may be lost where a person spends time away from this country. As already indicated an EU/EEA citizen who establishes a permanent right of residence after 5 years here loses that permanency after an absence of 2 years.
If a person leaves the country and establishes a stable work situation in another country, moves their family to that other country and possibly purchases property there, then this would suggest that their centre of interest is no longer in Ireland. On the other hand, notwithstanding periods of temporary or occasional absences, a person could still be habitually resident in this country.
If a person is working abroad and returns home at regular intervals to visit family or because they have maintained a home here it is possible that their centre of interest is still in Ireland.
Returning Irish migrants or those resuming habitual residence can be regarded as being habitually residence immediately on their return to the State. Indeed, in the circumstances outlined in the previous paragraph, it could be argued that they never ceased to be habitually resident in Ireland.
In considering such cases Deciding Officers/Designated Officers may wish to consider some or all of the following:
Answers to the above, and any other factors a Deciding Officer or Designated Officer may consider relevant, should help to establish if the person maintained their centre of interest here while abroad or if they have resumed their habitual residence here.
The applicant’s employment record in Ireland and elsewhere is relevant together with any future plans a person may have. A person who has lived here for an appreciable time and is working legally in stable employment may be presumed to be habitually resident unless the person is a “posted worker” or it is otherwise clear that the work assignment here is for a limited period. Where the person is in that employment for at least a month or self-employed for at least six months they will normally satisfy the habitual residence condition while that employment is ongoing. If there are any doubts as to whether the employment or self-employment is real and genuine then a detailed examination should be undertaken.
Responses to the following will assist in determining this aspect of the five factors:
For self-employment to be recognised it must be registered with the Revenue Commissioners and proof of registration must be provided, for the business to be regarded as bona fide self-employment of an ongoing nature which was in existence before any claim for social welfare was made. If in doubt refer to a Social Welfare Inspector for investigation or Scope Section if there are questions as to whether the activity should be regarded as self-employment or employment.
Remember that EU/EEA citizens exercising their right of free movement, whose right of residence is based on the fact that they have come to Ireland seeking employment, are not entitled to access social assistance payments unless/until they have obtained work. Those who have worked and become unemployed and have not established a right of permanent residence may qualify for Supplementary Welfare as a social advantage without the need to satisfy HRC.
Please note that situations will arise where the person may find it difficult or impossible to provide information in relation to their employment in this country. This might include people who have been trafficked here for one reason or another and such cases should be treated sympathetically and the provisions of the habitual residence condition implemented in a proportionate way having regard to the particular circumstances of the case presented.
An applicant’s main centre of interest would normally be in the country in which they have lived all their lives and where their home and family are located. This may not change even in situations where the person lives and works in another country for a time.
On the other hand, a person who previously lived in another country may have moved to Ireland to live here on a long-term basis and establish their main centre of interest here. This could apply to foreign nationals who have decided to live here permanently but it can equally apply to returning Irish emigrants or retired missionaries who have spent many years abroad and who have chosen to resettle here in Ireland.
In determining where an applicant’s centre of interest lies you might consider the following:
A key factor in determining Habitual Residence is the person’s intentions as apparent from their actions or plans. This is particularly important when considering applications from those who have not been here for long.
The following points could be considered:
The habitual residence condition must be satisfied at the time of claiming a payment. However, legislation provides that the person must continue to satisfy the condition for the duration of the claim. Accordingly, a person’s habitual residence may be reviewed at any time to ensure the condition continues to be satisfied.
The condition consists of two parts, residence and an assessment under the five factors and any other circumstances considered relevant. A person cannot be regarded as habitually resident unless they satisfy both parts of the condition.
The decision is appealable to the Social Welfare Appeals Office and in the interests of ensuring that the claims process and appeal is finalised as quickly as possible it would be appropriate that a Deciding Officer/Designated Person should consider both aspects when deciding a claim.
In line with departmental policy on consistency of decision making, if a person is deemed to satisfy the HRC on a different scheme then that decision will stand unless it is clear that it was an incorrect decision in the light of new evidence or that circumstances have changed since that decision was made.
This does not mean that only one decision is required as a decision on every claim must be made to the effect that the person satisfies the qualifying conditions. However, where a previous decision has been made that should carry forward to the new claim without the need to examine all the factors unless it is clear that something has changed since the original decision was made or that decision was incorrect.
Persons who are not habitually resident at the time of an application for a specified payment may become habitually resident by the time they make a subsequent claim for the same or a different payment. Similarly a person considered to be habitually resident may lose that status in relation to a subsequent claim or as a result of a review.
Where it is proposed to make a decision which is different to a previous decision in respect of the same person, the Deciding Officers/Designated Persons involved must consult to ensure a consistent interpretation of the person’s status. Where agreement cannot be reached the case should be referred to the relevant managers and ultimately to the Decisions Advisory Office.
While it is important that all decisions are correctly recorded and notified to the customer, this is particularly important in the case of HRC, due to the complexity of the rules and the fact that many customers affected by HRC do not have English as their first language.
Provisions with respect to habitual residence
246.—(1) For the purpose of each provision of this Act specified in subsection (3), it shall be presumed, until the contrary is shown, that a person is not habitually resident in the State at the date of the making of the application concerned unless the person has been present in the State or any other part of the Common Travel Area for a continuous period of 2 years ending on that date. (17)
(1) A requirement, in any of the provisions specified in subsection (3), for a person to be habitually resident in the State means that—
(a) the person must be habitually resident in the State at the date of the making of the application, and the person must remain habitually resident in the State after the making of that application in order for any entitlement to subsist,
(b) the person is a worker or a self-employed person, residing in the State pursuant to article 7 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 (2 O.J. No. L. 158, 30.4.2004, p. 77.), from—
(i) a Member State, or
(ii) a member state of the European Economic Area,
(c) the person is a family member of a person referred to in paragraph (b),
(d) where a person referred to in paragraph (b) ceases to be such a worker or such a self-
employed person, the person must be habitually resident in the State immediately after the date of such cessation, and must remain habitually resident in the State in order for any entitlement to subsist, or
(e) where a person referred to in paragraph (b) ceases to be such a worker or such a self-employed person, a family member of such a person must be habitually resident in the State immediately after the date of such cessation, and the family member must remain habitually resident in the State in order for any entitlement to subsist. (18)
(2) In subsection (1) “other part of the Common Travel Area” means the United Kingdom of Great Britain and Northern Ireland, the Channel Islands and the Isle of Man. (19)
(3) The provisions of this Act referred to in subsection (1) are sections 141(9), 154(c) 153(c), (20) (21) 161A(d), (22) 163(3), 168(5), 173(6), 180 (23) 180(2), 186A(2), (24) 186D(3) 186D(1), (25) (26) 192, 210(9) and 220(3). 210(9), 220(3) and 238B(5). (27)
(4) Notwithstanding the presumption in subsection (1), a A (28) deciding officer or the Executive a designated person (29) , when determining whether a person is habitually resident in the State (30) resident in the State for the purposes of this Act, shall take into consideration all the circumstances of the case including, in particular, the following –
(a) the length and continuity of residence in the State or in any other particular country,
(b) the length and purpose of any absence from the State,
(c) the nature and pattern of the person’s employment,
(d) the person’s main centre of interest, and
(e) the future intentions of the person concerned as they appear from all the circumstances. (31)
(5) Notwithstanding subsections (1) to (4) and subject to subsection (9), a person who does not have a right to reside in the State shall not, for the purposes of this Act, be regarded as
being habitually resident in the State.
(6) The following persons shall, for the purpose of subsection (5), be taken to have a right to reside in the State:
(a) an Irish citizen under the Irish Nationality and Citizenship Acts 1956 to 2004;
(b) a person who has a right to enter and reside in the State under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656/2006), the European Communities (Aliens) Regulations, 1977 (S.I. No. 393/1977) or the European Communities ( Right of Residence For Non Economically Active Persons ) Regulations 1997 (S.I. No. 57/1997): (32)
(b) a person who has the right under the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) to enter and reside in the State or is deemed under those Regulations to be lawfully resident in the State; (33)
(c) a person in respect of whom a declaration within the meaning of section 17 of the Act of 1996 is in force; (34)
(c) a person in relation to whom a refugee declaration within the meaning of the Act of 2015 is in force, or is deemed under that Act to be in force; (35)
(ca) a person in relation to whom a subsidiary protection declaration within the meaning of the Act of 2015 is in force, or is deemed under that Act to be in force; (36)
(d) a member of the family of a refugee, or a dependent member of the family of a refugee, in respect of whom permission has been granted to enter and reside in the State under, and in accordance with, section 18(3)(a) or, as the case may be, section 18(4)(a) of the Act of 1996; (37)
(d) a person who has been given, or is deemed under the Act of 2015 to have been given, a permission to enter and reside in the State under section 56 of that Act, where the permission concerned is in force; (38)
(da) a person who has been given, or is deemed under the Act of 2015 to have been given, a permission to reside in the State under section 57 of that Act, where the permission concerned is in force; (39)
(e) a programme refugee within the meaning of section 24 of the Act of 1996; (40)
(e) a person who is a programme refugee within the meaning of section 59 of the Act of 2015 or is deemed to be a programme refugee under subsection (4) of that section; (41)
(f) a person who has been granted permission to remain in the State under Regulation 4(4) of the Regulations of 2006; (42)
(f) a person to whom a permission granted to reside in the State under Regulation 23, 25 or 26 of the Regulations of 2013 is in force; (43) (44)
(f) a person who has been given, or is deemed under the Act of 2015 to have been given, a permission to reside in the State under section 54 of that Act, where the permission concerned is in force; (45)
(g) a person who has been granted permission to enter, and reside in, the State under Regulation 16(3)(a) or 16(4)(a) of the Regulations of 2006 by the Minister for Justice, Equality and Law Reform; (46)
(h) a person whose presence in the State is in accordance with a permission to be in the State given by or on behalf of the Minister for Justice, Equality and Law Reform under and in accordance with section 4 or 5 of the Immigration Act 2004. the Immigration Act 2004; (47)
(i) a person who has been given a permission to reside in the State under section 60(6) of the Act of 2015, where the permission concerned is in force. (48)
(7) The following persons shall not be regarded as being habitually resident in the State for the purpose of this Act:
(a) a person who has made an application under section 8 of the Act of 1996 and where the Minister for Justice, Equality and Law Reform has not yet made a decision as to whether a declaration under section 17 of the Act of 1996 will be given in respect of such application;
(aa) an applicant within the meaning of section 16 of the Act of 2015, or a person deemed to have made an application under that Act; (49)
(b) a person in respect of whom an application for subsidiary protection has been made under Regulation 4 of the Regulations of 2006 and where a determination under that Regulation has not yet been made in respect of such application; (50)
(b) an applicant within the meaning of the Regulations of 2013, or any other person awaiting a grant of permission to reside in the State under Regulation 23, 25 or 26 of the Regulations of 2013; (51)
(c) a person who has been notified under section 3(3)(a) of the Immigration Act 1999 that the Minister for Justice, Equality and Law Reform proposes to make a deportation order, whether or not that person has made representations under section 3(3)(b) of that Act, and where the Minister for Justice, Equality and Law Reform has not yet made a decision as to whether a deportation order is to be made in respect of such person;
(d) a person who has made an application under section 8 of the Act of 1996 which has been refused by the Minister for Justice, Equality and Law Reform;
(da) a person who has made, or is deemed under the Act of 2015 to have made, an application under section 15 of that Act which has been refused by the Minister for Justice and Equality; (52)
(e) a person in respect of whom an application for subsidiary protection has been made under Regulation 4 of the Regulations of 2006 and a determination has been made that the person is not eligible for subsidiary protection under the Regulations of 2006; (53)
(e) a person—
(i) whose application for subsidiary protection under Regulation 4 or 16 of the Regulations of 2006 has been refused, or whose permission under Regulation 4 or 16 of the Regulations of 2006 has been revoked,
(ii) whose application under Regulation 3 of the Regulations of 2013 for a subsidiary protection declaration has been refused, or whose subsidiary protection declaration has been revoked, under the Regulations of 2013, or
(iii) whose application under Regulation 25 or 26 of the Regulations of 2013 has been refused, or whose permission under Regulation 25 or 26 of the Regulations of 2013 has been revoked; (54)
(f) a person in respect of whom a deportation order has been made under section 3(1) of the Immigration Act 1999. (55)
(f) a person in relation to whom a deportation order has been made, or has been deemed under section 51 of the Act of 2015 to have been made, under section 3(1) of the Immigration Act 1999. (56)
(8) For the purpose of this Act, where a person—
(a) is given a declaration that he or she is a refugee under section 17 of the Act of 1996, (57)
(a) is given, or deemed under the Act of 2015 to be given, a refugee declaration under that Act, (58)
(b) is granted permission to enter and remain in the State under section 18(3)(a) or 18(4)(a) of the Act of 1996, (59)
(b) is given, or deemed under the Act of 2015 to be given, a permission to enter and reside in the State under section 56 of that Act, (60)
(ba) is given, or deemed under the Act of 2015 to be given, a permission to reside in the State under section 57 of that Act, (61)
(c) is granted permission to remain in the State under Regulation 4(4) of the Regulations of 2006, (62)
(c) is given, or deemed under the Act of 2015 to be given, a subsidiary protection declaration under that Act, or (63)
(d) is granted permission to enter and reside in the State under Regulation 16(3)(a) or 16(4)(a) of the Regulations of 2006, or (64)
(d) is granted permission to reside in the State under Regulation 23, 25 or 26 of the Regulations of 2013, or (65) (66)
(e) is granted permission to remain in the State under and in accordance with the Immigration Act 1999 or (67) the Immigration Act 2004,
he or she shall not be regarded as being habitually resident in the State for any period before the date on which the declaration referred to in paragraph (a) was given or the permission referred to in paragraph (b), (c), (d) or (e), was granted. declaration or permission concerned was given or granted as the case may be and, in the case of a declaration or permission deemed to be given, for any period before the date on which the declaration or permission concerned was originally given. (68)
(9) Notwithstanding that a person has, or is taken to have in accordance with subsection (6), a right to reside in the State the determination as to whether that person is habitually resident in the State shall be made in accordance with subsections (1) and (4).
(10) In this section—
‘Act of 1996’ means the Refugee Act 1996;
‘Act of 2015’ means the International Protection Act 2015; (69)
‘Regulations of 2006’ means the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518/2006) ; (70)
‘Regulations of 2013’ means the European Union (Subsidiary Protection) Regulations 2013 (S.I. No. 426/2013) . (71) (72)
3. (1) This paragraph applies to—
(a) Union citizens entering or remaining in the State in accordance with these Regulations, and
(b) a family member of a Union citizen referred to in subparagraph (a) who—
(i) enters the State in the company of the Union citizen,
(ii) enters the State for the purpose of joining the Union citizen, or
(iii) becomes a family member while in the State and seeks to remain with the Union citizen in the State.
(2) The European Communities (Aliens) Regulations 1977 (S.I. No. 393 of 1977) and the European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1977 (S.I. No. 57 of 1997) shall apply to citizens of Member States of the European Economic Area other than Union citizens entering and remaining in the State in accordance with these Regulations.
(3) A person lawfully resident in the State in accordance with the provisions of the European Communities (Aliens) Regulations 1977, the European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1997 or the Regulations of 2006 shall be deemed to be lawfully resident in the State for the purposes of these Regulations.
(4) Nothing in these Regulations shall affect the validity of a residence permit or residence document issued under the European Communities (Aliens) Regulations 1977 or the European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1997.
(5) For the purpose of these Regulations, a person is a qualifying family member of a particular Union citizen where—
[548] 5
(a) subparagraphs (a) and (b) of paragraph (1) apply, respectively, to the Union citizen and the person, and
(b) the person is—
(i) the Union citizen's spouse or civil partner,
(ii) a direct descendant of the Union citizen, or of the Union citizen's spouse or civil partner, and is—
(I) under the age of 21, or
(II) a dependent of the Union citizen, or of his or her spouse or civil partner, or
(iii) a dependent direct relative in the ascending line of the Union citizen, or of his or her spouse or civil partner.
(6) For the purposes of these Regulations, a person is a permitted family member of a particular Union citizen where—
(a) subparagraphs (a) and (b) of paragraph (1) apply, respectively, to the Union citizen and the person, and
(b) the Minister has, in accordance with Regulation 5, decided that the person should be treated as a permitted family member of the Union citizen for the purposes of these Regulations, which decision has not been revoked pursuant to Regulation 27.
6. (1) A person to whom Regulation 3(1) applies may reside in the State for up to 3 months on condition that he or she—
(a) (i) where the person is a Union citizen, holds a valid national identity card or passport,
(ii) where the person is not a Union citizen, holds a valid passport,
and
(b) does not become an unreasonable burden on the social assistance system of the State.
(2) A Union citizen to whom Regulation 3(1)(a) applies who has entered the State seeking employment, and his or her family members, may continue to reside in the State for a period that is longer than 3 months where the Union citizen concerned can satisfy the Minister that he or she continues to seek employment and has a realistic prospect of being engaged in employment.
(3) (a) A Union citizen to whom Regulation 3(1)(a) applies may reside in the State for a period that is longer than 3 months if he or she—
(i) is in employment or in self-employment in the State,
(ii) has sufficient resources for himself or herself and his or her family members not to become an unreasonable burden on the social assistance system of the State, and has comprehensive sickness insurance in respect of himself or herself and his or her family members,
(iii) is enrolled in an educational establishment accredited or financed by the State for the principal purpose of following a course of study there and has comprehensive sickness insurance in respect of himself or herself and his or her family members and, by means of a declaration or otherwise, satisfies the Minister that he or she has sufficient resources for himself or herself and his or her family members not to become an unreasonable burden on the social assistance system of the State,
or
(iv) subject to paragraph (4), is a family member of a Union citizen who satisfies one or more of the conditions referred to in clause (i), (ii) or (iii).
(b) Subject to paragraph (4), a family member who is not a national of a Member State may reside in the State for a period longer than three months where the Union citizen concerned satisfies one or more of the conditions referred to in clause (i), (ii) or (iii) of subparagraph (a).
(c) Where a person to whom subparagraph (a)(i) applies ceases to be in the employment or self-employment concerned, that subparagraph shall be deemed to continue to apply to him or her, where—
(i) he or she is temporarily unable to work as the result of an illness or accident,
(ii) he or she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with a relevant office of the Department of Social Protection,
(iii) subject to subparagraph (d), he or she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year, or after having become involuntarily unemployed during the first year, and has registered as a jobseeker with a relevant office of the Department of Social Protection, or
(iv) he or she takes up vocational training and, unless he or she is involuntarily unemployed, the training relates to his or her previous employment.
(d) In a case to which subparagraph (c)(iii) applies, subparagraph (a)(i) shall be deemed to apply to the person concerned for 6 months after the cessation of the employment concerned only, unless the person enters into employment or self-employment within that period.
(4) In a case where a Union citizen has an entitlement to reside in the State under paragraph
(3)(a)(iii), paragraphs (3)(a)(iv) and (3)(b) shall confer a right to reside in the State on a family member only where the family member is—
(a) a spouse or civil partner of the Union citizen concerned, or
(b) a child of the Union citizen concerned, or of the Union citizen’s spouse or civil partner, and is—
(i) under the age of 21, or
(ii) a dependent of the Union citizen, or of his or her spouse or civil partner.
(5) (a) Where a Union citizen has an entitlement to reside in the State under paragraph (3)(a)(iii), a person to whom subparagraph (b) applies may apply to the Minister for a permission to remain in the State with that Union citizen.
(b) This paragraph applies to a direct relative in the ascending line of the Union citizen, or of the Union citizen’s spouse or civil partner, who is dependent on the Union citizen, or on the Union citizen’s spouse or civil partner.
(c) In order to decide whether to grant a permission under paragraph (a), the Minister shall cause to be carried out an extensive examination of the personal circumstances of the applicant and shall have regard to the following:
(i) the extent and nature of the dependency;
(ii) in the case of financial dependency, the extent and duration of the financial support provided by the Union citizen or his or her spouse or civil partner to the applicant prior to the applicant’s coming to the State, having regard, amongst other relevant matters, to living costs in the country from which the applicant has come, whether the financial dependency can be satisfied by remittances to the applicant in the country from which he or she has come and other financial resources available to him or her;
(iii) in the case of dependency on serious health grounds which strictly require the personal care of the Union citizen or his or her spouse or civil partner, the nature of the serious health grounds concerned and the duration of the period in which they have existed;
(iv) the capacity of the Union citizen concerned to continue to support the applicant in the State in the event that the Minister were to grant a permission.
(6) The Minister, following an examination under paragraph 5(c), shall—
(a) where he or she decides than an applicant may remain in the State, notify the applicant in writing of the decision, or
(b) where he or she decides that an applicant may not remain in the State, notify the applicant in writing of the decision and of the reasons for it
9. (1) Where a Union citizen dies or departs from the State and, at the time of his or her death or departure, he or she had a right of residence in the State under these Regulations, a family member who is a national of a Member State shall retain the right of residence under these Regulations that he or she enjoyed at the time of the Union citizen's death or departure.
(2) Where a Union citizen dies and, at the time of his or her death, he or she had a right of residence in the State under these Regulations, a family member who is not a national of a Member State may, where he or she has been residing in the State as a family member of the Union citizen for at least one year before the death, continue to reside in the State on an individual and personal basis.
(3) Where a Union citizen dies or departs from the State and, at the time of his or her death or departure, he or she had a right of residence in the State under these Regulations, and his or her child, being resident in the State, was enrolled in an educational establishment in the State for the principal purpose of studying there, then the parent, irrespective of nationality—
(a) who has custody of the child, where the child is under the age of 18 years, or
(b) whose presence and care continues to be needed by the child, in order for the child to be able to pursue and complete his or her education, where the child is aged 18 years or over, shall be entitled to reside in the State until completion by the child of the course of studies or training concerned.
10. (1) Where the marriage or civil partnership of a Union citizen is dissolved or annulled and, at the time of the dissolution or annulment, as the case may be, he or she had a right of residence in the State under these Regulations, a family member who is a national of a Member State shall retain the right of residence that he or she enjoyed at the time of the dissolution or annulment.
(2) (a) Subject to subparagraph (b), where the marriage or civil partnership of a Union citizen is dissolved or annulled and, at the time of the dissolution or annulment, as the case may be, he or she had a right of residence in the State under these Regulations, a family member who
[548] 15
is not a national of a Member State may retain a right of residence in the State on an individual and personal basis.
(b) A right of residence of a family member referred to in subparagraph (a) is subject to the Minister being satisfied that—
(i) prior to the initiation of the dissolution or annulment proceedings concerned, the marriage or civil partnership had lasted at least 3 years, including one year in the State,
(ii) by agreement between the spouses or civil partners, or by court order, the spouse or civil partner who is not a national of a Member State has custody of the Union citizen’s children,
(iii) the retention of such right of residence is warranted by particularly difficult circumstances, such as the spouse, civil partner or child under 18 years of the Union citizen concerned having been a victim of domestic violence while the marriage or civil partnership was subsisting, or
(iv) by agreement between the spouses or civil partners, or by court order, the spouse or civil partner who is not a national of a Member State has the right of access to child under the age of 18 years, provided—
(I) the agreement or the court order requires access in the State to the child, and
(II) the right of residence of the spouse or civil partner is for as long as is required to give effect to that access.
12. (1) Subject to paragraphs (2) and (5) and Regulation 13, the following may remain permanently in the State:
(a) a Union citizen who has resided in the State in conformity with these Regulations for a continuous period of 5 years, and
(b) a family member of a Union citizen referred to in subparagraph (a), who is not a national of a Member State and who has resided with the Union citizen in the State in conformity with these Regulations for a continuous period of 5 years.
(2) Paragraph (1) does not apply to a person whose right to reside in the State is based solely on Regulation 9(3).
(3) A person to whom Regulation 9(1) or 10(1) applies may remain permanently in the State where—
(a) he or she satisfies one or more of the conditions referred to in Regulation 6(3)(a)(i) to (iv), and
(b) he or she has resided in the State in conformity with these Regulations for a continuous period of 5 years.
(4) A person to whom Regulation 9(2) or 10(2) applies may remain permanently in the State where—
(a) he or she continues to satisfy one of the following conditions:
(i) he or she is in employment or self-employment in the State;
(ii) he or she has sufficient resources for himself or herself and his or her family members not to become an unreasonable burden on the social assistance system of the State, and has comprehensive sickness insurance in respect of himself or herself and his or her family members;
(iii) he or she is a member of the family, already constituted in the State, of a Union citizen who satisfies clause (i) or (ii); and
(b) he or she has resided in the State in conformity with these Regulations for a continuous period of 5 years.
(5) For the purposes of these Regulations, continuity of residence in the State shall not be affected by—
(a) temporary absences not exceeding 6 months in a 12 month period,
(b) absences of a longer duration for compulsory military service,
(c) one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in a Member State or a third country.
(6) Without prejudice to Regulations 20 to 23, where a person has acquired the right to remain permanently in the State pursuant to these Regulations, that right shall cease to exist only where the person concerned has been absent from the State for a period exceeding 2 consecutive years.
(7) In calculating a period of residence for the purposes of this Regulation, a period of residence in accordance with the Regulations of 2006 shall be reckonable.
13. (1) Notwithstanding Regulation 12, a Union citizen who has resided in the State in accordance with these Regulations but who has not so resided for a continuous period of 5 years may remain permanently in the State if—
(a) (i) he or she has reached pensionable age as defined in the Social Welfare Acts or has taken early retirement, and
(ii) at the time of reaching pensionable age or taking early retirement, he or she has resided continuously in the State for more than 3 years and has been in employment or self-employment in the State for at least the previous 12 months,
(b) having resided continuously in the State for more than 2 years, he or she ceases to be in employment or self-employment in the State as a result of permanent incapacity for work, or
(c) he or she has been permanently incapacitated from work as a result of an accident at work or an occupational illness entitling him or her to a pension or other benefit which is payable in whole or in part by the State.
(2) The conditions as to length of residence and employment or self-employment specified in paragraph (1)(a) and the condition as to length of residence specified in paragraph (1)(b) shall not apply if the spouse or civil partner of the Union citizen concerned is a citizen of the State.
(3) A Union citizen who, after 3 years’ continuous residence and employment or self-employment in the State, is in employment or self-employment in a Member State while retaining his or her residence in the State and returning to the State at least once a week may remain permanently in the State.
(4) A period in employment or self-employment, if completed in the territory of a Member State, shall, for the purpose of entitlement to the rights referred to in paragraph (1), be considered as having been completed in the State where the Union citizen during that period retained his or her residence in the State and returned to the State at least once a week.
(5) The following shall be considered as periods in employment or self-employment for the purposes of this Regulation:
(a) periods in involuntary unemployment which are duly recorded;
(b) periods of absence from or cessation of employment or self-employment for reasons not of the person’s own making;
(c) periods of absence from or cessation of employment or self-employment due to illness or accident.
(6) Where a Union citizen is entitled to remain permanently in the State pursuant to paragraph (1) or (3), a family member of the Union citizen, irrespective of the family member's nationality, may reside permanently in the State where he or she is residing with the Union citizen.
(7) Where a Union citizen to whom Regulation 3(1)(a) applies is in employment or self-employment in the State and dies while in that employment or self-employment but before acquiring a right to permanent residence in the State, a family member who is residing with him or her at the time of the death, may remain permanently in the State if—
(a) the Union citizen concerned had, on the date of his or her death, resided continuously in the State for at least 2 years, or
(b) the death of the Union citizen had resulted from an accident at work or from an occupational illness.
17. (2) (a) Subject to subparagraph (b), a person to whom Regulation 6(1) or 6(2) applies shall not be entitled to receive assistance under the Social Welfare Acts.
(b) Subparagraph (a) does not apply in relation to a payment under sections 201 and 202 of the Social Welfare Consolidation Act 2005.
Article 7 Waiving of residence rules
Unless otherwise provided for by this Regulation, cash benefits payable under the legislation of one or more Member States or under this Regulation shall not be subject to any reduction, amendment, suspension, withdrawal or confiscation on account of the fact that the beneficiary or the members of his family reside in a Member State other than that in which the institution responsible for providing benefits is situated.
Family Benefits
Article 67 Members of the family residing in another Member State
A person shall be entitled to family benefits in accordance with the legislation of the competent Member State, including for his family members residing in another Member State, as if they were residing in the former Member State. However, a pensioner shall be entitled to family benefits in accordance with the legislation of the Member State competent for his pension.
Article 7
1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment.
2. He shall enjoy the same social and tax advantages as national workers.
Returning Irish emigrants are not exempt from satisfying HRC. However, you should bear in mind that while a person may have worked abroad for a period, where appropriate, it is still reasonable to assume that their centre of interest remained in Ireland while abroad. It is also possible that following a period abroad a person may satisfy HRC from their date of return.
The following questions may assist in dealing with cases of this nature:
The fact that an employment permit has a limited period validity should not be taken as evidence that the person is not habitually resident in the State. Permit holders may be considered to be habitually resident if they have a period of one month’s insurable employment or six months self-employment during which they have lived here continuously. In effect they are habitually resident as long as they are employed or self-employed. Where they fail to renew a permit or it expires employment subsequent to the expiry of the permit may not be considered in determining habitual residence.
Receipt of Child Benefit by someone who is employed/self-employed or is otherwise self-supporting is not regarded as being a “burden on the State”. Receipt of a social assistance payment would be considered to be such a burden.
Missionaries who return to Ireland after service abroad and intend to resettle here should be regarded as having their centre of interest here.
Periods spent in Ireland performing short-term missionary or voluntary work where the person is supported from abroad and is not registered for tax or PRSI here should not be considered as contributing to satisfying HRC.
In such cases a check should be made with the Department of Justice and Equality that the person’s right of residence has not been revoked. If a right of residence is maintained then an assessment under the 5 factors should be made.
Children born in Ireland prior to 1 January 2005 were automatically entitled to Irish citizenship. At that time stage, a number of foreign national parents of Irish citizen children were given leave to remain. While it would be unusual for such cases to come forward at this stage (that is, not to have established a more permanent residency by now), parents of Irish citizen children who have been granted leave to remain may be treated as habitually resident.
Since 2005, Irish born children do not automatically qualify for citizenship. Eligibility for Citizenship is determined by one or both of the parent’s citizenship, or by their parents’ residence history prior to the birth. HRC should be determined based on the parent’s right to reside and the five factors.
Permission to remain in Ireland may be granted to dependants of a person granted refugee status or to the dependants of someone holding a work permit employed in the State.
Where documentation such as a valid residency permit is not available confirmation should be sought from the Department of Justice and Equality that residency has been granted together with any associated conditions.
DSP has an arrangement with the Anti-human Trafficking unit (AHTU) in the HSE whereby we get notified by the AHTU that a person has been accepted as a 'potential victim of human trafficking'.
This term means that an investigation has been undertaken by the Department of Justice, the Garda anti human trafficking unit and the HSE. Collectively, they're happy that the person can be deemed as a potential trafficking victim. While that doesn't confer a legislative right to reside and so on in Ireland, there are Administrative Immigration Arrangements for the Protection of Victims of Human Trafficking.
Under these Administrative Arrangements, potential victims of human trafficking may be granted a period of recovery and reflection in the State by theDepartment of Justice (DOJ) and may also, in certain circumstances be granted one or more periods of temporary residence.
People covered by this arrangement should be regarded as satisfying HRC for the period covered. It is also important to treat potential Victims of Human Trafficking with the utmost sympathy and avoid over-intrusive questioning of their circumstances.
Update to date information on each type of stamp is available on the ISD (irishimmigration.ie) site here. This information is subject to change in line with national and EU policy and legislative changes. You are advised to regularly check this website for updates.
(1) Article 3(2) of SI548/2015 provides that in the case of EEA citizens right of residence is governed by the European Communities (Aliens) Regulations 1977 (SI 393/1977) and the European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1977 (SI 57/1997). The provisions of these two SIs are similar to those contained in SI 548/2015
(2) Article 6(1) of SI 548/2015
(3) Article 6(2) of SI548/2015
(4) Article 17 of SI 548/2015
(5) Article 6(3) of SI 548/2015
(6) See para 56/57 CJEU C67/14 Alimanovic.
(7) Article 3(5) of SI 548/2015
(8) Article 5 of SI 548/2015
(9) Articles 9,10,11 of SI 548/2015
(10) Guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States
(11) CJEU Dano C333/13
(12) Articles 12 and 13 of SI 548/2015
(13) Art 67 of EU Regulation 883/3004
(14) In the case of people returning from other EU/EEA countries who were insured for unemployment benefits there it might be appropriate to consider if they could be treated as cross border workers under Article 65 of Regulation 883/2004. Such persons can claim benefits in the State of last employment or the State of residence
(15) A registered charity to assist with the difficulty experienced by a minority of Irish emigrants in demonstrating their intention to live here permanently. Safe Home has designed a declaration which will confirm a person is engaging with them as part of their repatriation arrangements
(16) Subsection (1) substituted by s.11(1)(a) SW&PA 2014
(17) Subsection (1) substituted by s.11(1)(a) SW&PA 2014
(18) Subsection (2) deleted by s.11(1)(b) SW&PA 2014
(19) Substituted by s. 17 + Sch. 3 SWLR&PA 2006
(20) Uncommenced provision - see s.13(e) SW&PA 2008
(21) Inserted by s.11(1)(c)(i) SW&PA 2014
(22) Substituted by s.11(1)(c)(ii) SW&PA 2014
(23) Amended by s. 21 SW&PA 2008
(24) Inserted by s.16(f) SW & PA 2008
(25) Substituted by s.19 SW&P(MP)A 2013
(26) Substituted by Sch. to SW(MP)A 2015
(27) Substituted by s.11(1)(d)(i) SW&PA 2014
(28) Substituted by s. 18 and Sch/ 1 SW&PA 2008
(29) Substituted by s.11(1)(d)(ii) SW&PA 2014
(30) S. 246(4) inserted by s. 30 SW&PA 2007
(31) Para. (b) substituted by s.18(a)(i) SWA 2016
(32) Para. (b) substituted by s.18(a)(i) SWA 2016
(33) Para. (c) substituted by s.18(a)(ii) SWA 2016
(34) Para. (c) substituted by s.18(a)(ii) SWA 2016
(35) Para. (ca) inserted by s.18(a)(iii) SWA 2016
(36) Para. (d) substituted by s.18(a) (iv) SWA 2016
(37) Para. (d) substituted by s.18(a) (iv) SWA 2016
(38) Para. (da) inserted by s.18(a)(v) SWA 2016
(39) Para. (e) substituted by s.18(a)(vi) SWA 2016
(40) Para. (e) substituted by s.18(a)(vi) SWA 2016
(41) Para (f) substituted by s.11(1)(e)(i) SW&PA 2014
(42) Para (f) substituted by s.11(1)(e)(i) SW&PA 2014
(43) Para. (f) substituted by s.18(a)(vii) SWA 2016
(44) Para. (f) substituted by s.18(a)(vii) SWA 2016
(45) Para (g) deleted by s.11(1)(e)(ii) SW&PA 2014
(46) Substituted by s.18(a)(viii) SWA 2016
(47) Para. (i) inserted by s.18(a)(ix) SWA 2016
(48) Para. (aa) inserted by s.18(b)(i) SWA 2016
(49) Para (b) substituted by s.11(1)(f)(i) SW&PA 2014
(50) Para (b) substituted by s.11(1)(f)(i) SW&PA 2014
(51) Para. (da) inserted by s.18(b)(ii) SWA 2016
(52) Para (e) substituted by s.11(1)(f)(ii) SW&PA 2014
(53) Para (e) substituted by s.11(1)(f)(ii) SW&PA 2014
(54) Para. (f) substituted by s.18(b)(iii) SWA 2016
(55) Para. (f) substituted by s.18(b)(iii) SWA 2016
(56) Para. (a) substituted by s.18(c)(i) SWA 2016
(57) Para. (a) substituted by s.18(c)(i) SWA 2016
(58) Para. (b) substituted by s.18(c)(ii) SWA 2016
(59) Para. (b) substituted by s.18(c)(ii) SWA 2016
(60) Para. (ba) inserted by s.18(c)(iii) SWA 2016
(61) Para. (c) substituted by s.18(c)(iv) SWA 2016
(62) Para. (c) substituted by s.18(c)(iv) SWA 2016
(63) Para (d) substituted by s.11(1)(g)(i) SW&PA 2014
(64) Para (d) substituted by s.11(1)(g)(i) SW&PA 2014
(65) Para. (d) deleted by s.18(c)(v) SWA 2016
(66) Deleted by s.11(1)(g)(ii) SW&PA 2014
(67) Substituted by s.18(c)(vi) SWA 2016
(68) Def. inserted by s.18(d) SWA 2016
(69) Substituted by s.11(1)(h)(i) SW&PA 2014
(70) Inserted by s.11(1)(h)(ii) SW&PA 2014
(71) Ss (5) to (10) originally inserted by s.15 SW&P(No. 2)A 2009
(72) In the case of people returning from other EU/EEA countries who were insured for unemployment benefits there it might be appropriate to consider if they could be treated as cross border workers under Article 65 of Regulation 883/2004. Such persons can claim benefits in the State of last employment or the State of residence
(73) A registered charity to assist with the difficulty experienced by a minority of Irish emigrants in demonstrating their intention to live here permanently. Safe Home has designed a declaration which will confirm a person is engaging with them as part of their repatriation arrangements
(74) Defined in EU law as someone who resides in one Member State but works in another Member State and returns home at least once a week