The Position of EU Jobseekers in the Republic of Ireland

1. The Position of EU Jobseekers in the Republic of Ireland Saoirse Brady, FLAC Policy and Advocacy Officer

2. FLAC (Free Legal Advice Centres) • A independent human rights organisation • Dedicated to the realisation of equal access to justice for all using the law as a way to achieve change • Established in 1969 by law students to campaign for the introduction of a comprehensive civil legal aid scheme • Campaigns on a range of legal issues but also offers some basic, free legal services to the public: • Lo-call information line • Advice Centres • Provide legal information – web resources and guides

3. Social welfare law reform • Information guides • Guides to making a social welfare application, social welfare appeals and theHabitual Residence Condition • Strategic casework • Application of Habitual Residence Condition to different categories of people - asylum seekers, refugees, EU migrants, non-EU nationals, Irish citizens • Second tier advice • Citizens Information Centres and NGOs working on social security issues • Policy work and critical analysis • Research reports – Not Fair Enough: making the case for the reform of social welfare appeals system (2012) • Submissions on legislation, Budget and policies • Member of Migrant Consultative Forum with Department of Social Protection • Established after the publication of Person or Number? report by Crosscare, Nasc and Doras Luimni

4. Irish SNCBs Listed in Annex X • Annex X of EC Regulation 883/04 lists the following payments as SNCBs in Irish social welfare system: • Jobseekers Allowance • State pension (non-contributory) • Widow's and Widower's (non-contributory) pensions • Disability Allowance • Mobility Allowance • Blind Pension • Possible introduction of a single-working age payment has been postponed • The Joint Oireachtas (Parliamentary) Committee on Jobs, Social Protection and Education report March 2012

5. Habitual Residence Condition (HRC) • Question of fact • Applied to all special non-contributory benefits • Introduced in May 2004 in light of EU enlargement • Five factors which make up the HRC test are taken from CJEU Case C-90/97 Swaddling v. Adjudication Officer • (a) length and continuity of residence in the State or in any other particular country; • (b) length and purpose of any absence from the State; • (c) nature and pattern of the person’s employment; • (d) person’s main centre of interest; and • (e) future intentions of the person concerned as they appear from all the circumstances • Section 246 of the Social Welfare (Consolidation) Act 2005 (as amended) also known as the Principal Act

6. Right to Reside Test • Question of law • More frequently used by the Department of Social Protection • Introduced into legislation in December 2009 • Social Welfare and Pensions (No. 2) Act 2009 which amends s.246 of Principal Act • Persons listed in legislation as having a right to reside include: • Irish citizens • British nationals • EU workers or EU nationals who meet certain criteria • Convention or Programme refugees, their families and dependents • Persons granted leave to remain or subsidiary protection • List is non-exhaustive

7. Jobseekers Allowance - Criteria • Section 141 of the Social Welfare (Consolidation) Act 2005 • Claimant must be unemployed • Person must be over18 but under 66 years old • People under 25 receive a reduced rate of €100 for 18-21 or €144 for 21-24 • Maximum rate for over 25s is €188 per week • Must pass a means test • Partner’s income taken into account • Must be habitually resident • Must be capable of work • Must be genuinely seeking and available for work • Previously this criterion was used to prevent Romanian and Bulgarian nationals without a work permit from qualifying for JA

8. Supplementary Welfare Allowance - Criteria • Section 189 of the Social Welfare (Consolidation) Act 2005 • Ensures a basic minimum income – “safety net” payment • Must satisfy the HRC for basic payment unless an EU/EEA migrant worker working here or retains worker status • EEC Regulation 1612/68 as amended by Directive 2004/38 transposed into national law by S.I. 656/06 • EU/EEA migrant workers must be afforded “same social and tax advantages as national workers” • Must pass a means test • Partner’s income taken into account • Must have applied for any other payment to which he or she may be entitled under s.195(c) of 2005 Act

9. Payments for EU/EEA jobseekers • If applying for JA then subject to the HRC and must demonstrate that he or she satisfies it as Department states: • “...the provisions of Regulation 883/04 which deal with the co-ordination of social security entitlements for migrant workers moving within the EEA specifically allow for the application of a HRC in relation to such payments.” • In relation to SWA it is not necessary to satisfy the HRC if: • An EEA national who is engaged in genuine and effective employment in Ireland is regarded as a migrant worker under EC law... A person who has been so employed and retains his or her “worker” status in accordance with Regulation 1612/68 as amended by Directive 2004/38 (transposed into national law by S.I. 656/06) continues to be protected by this provision. • Concern that people may be encouraged to apply for SWA rather than JA to get payment in the short-term

10. Practical differences between payments • The SWA payment is €186 per week whereas JA is €188; • He or she cannot add social insurance credits when receiving SWA which may have an impact on any future entitlements; • The Department of Social Protection’s labour activation supports such as Intreo are only available to those on a jobseekers payment or where he or she is signing for credits; • There is a different means-test and different treatment of part-time work; • A person on SWA cannot access the Back to Work Enterprise Scheme or Back to Education Schemes as he or she is not in receipt of a qualifying payment.

11. Figures on EU/EEA Jobseekers in Ireland • In December 2012 there were 60,872 non-Irish EU nationals on Live Register (Central Statistics Office) • This figure may include people in receipt of JB or JA • In 3rd Quarter of 2012, according to the Quarterly National Household Survey there were at least 38,700 unemployed non-Irish EU nationals • There were 324,500 people overall classified as unemployed • Down from at least 43,100 in Quarter 3 of 2011 • In 2011, according to the Minister for Social Protection: • 1768/2222 (79%) Jobseekers Allowance refusals related to non-Irish EU nationals disallowed on the basis of the HRC. • The number of non-Irish EU nationals disallowed JA made up 39% of the total 4494 refusals of all welfare payments on basis of HRC

12. Social Welfare Appeals • Chief Appeals Officer’s 2011 annual report noted: • 20% of cases awaiting oral hearing related to JA appeals on HRC (1000 files) • Increasing number of cases related to EU nationals as a result of the economic downturn • Complexity of the right to reside condition, particularly for EU nationals, • Potential for over reliance on an employment record in determining the HRC, and • that a person can, and often does, have a centre of interest in this State, notwithstanding that his or her immediate family are resident in another State. • However, appellants have no entitlement to access previous decisions which may be relevant to their appeal.

13. Concerns • Misapplication of HRC leads to EU/EEA migrant workers not being able to access JA, the more appropriate payment. • People in this situation may be encouraged to apply for SWA rather than JA to avoid the application of HRC. • EU/EEA nationals who cannot access any payments may be returned to their country of origin • From Jan-Aug 2012, 139 EU nationals were repatriated by the Reception & Integration Agency • No clear safeguards in place to ensure that someone is not returned when they may have an entitlement • Appeals for JA were taking on average 25 weeks for a summary decision and 36 weeks for an oral hearing

14. Conclusions • Better statistical data should be kept on EU/EEA migrants in Republic of Ireland • Better decisions on habitual residence should be made and people should be able to access their entitlements in a fair and timely manner • Less appeals necessary • Appropriate safeguards should be put in place to ensure that people will not be repatriated without first checking that they are not entitled to any payments or that they are not awaiting a decision/appeal • People should not experience difficulty accessing JA where it is the correct and appropriate payment for them to receive

15. Further information • See our website www.flac.ie • Sign up to PILA Bulletin at www.pila.ie • For more information on Irish social security schemes see www.welfare.ie • For information on social welfare appeals see www.socialwelfareappeals.ie • For information on EU social security law see http://www.tress-network.org/ • For statistics on return of EU12 Accession State Nationals see: http://www.ria.gov.ie/ • For Parliamentary Questions and debates see www.oireachtas.ie