Background
My complainant, a woman, is a non-EU national. She is married to a non-Irish national, who comes from an EU Accession State. She approached my Office about the decision of the Department of Social Protection to refuse her child benefit claim as she did not satisfy the habitual residence condition.
The habitual residence condition can be determined by certain factors. Section 246 (4) of the Social Welfare Consolidation Act, 2005, incorporates into Irish law five factors that have been set down in judgments given by the European Court of Justice (ECJ).
Length and continuity of residence in Ireland or in any other particular country,Length and purpose of any absence from Ireland,Nature and pattern of employment,Applicant's main centre of interest, andFuture intention of applicant concerned as they appear from all the circumstances.
Under EU Regulations, EU/EEA citizens and Swiss nationals who are employed or self-employed in Ireland and subject to the Irish social welfare system, satisfy the habitual residence condition to qualify for family benefits, including child benefit.
My complainant’s father-in-law, who is also a non-Irish national from an EU Accession State, is regarded as being habitually resident in Ireland by virtue of the fact that he is a migrant worker paying social/health insurance.
Investigation
As my complainant and her family are living with, and are dependent on, her father-in-law, I requested that the Department review its decision and argued that the dependency on my complainant’s father-in-law validated the claim that she and her family were also habitually resident in the State.
Outcome
In response, the Department reviewed its decision and granted child benefit, backdated to the date of application. This resulted in payment of arrears amounting to €3,942.