Returned Irish citizen/US spouse fails habitual residency test for welfare

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yankeewife

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Hi, everyone.

I lost my job in the USA in March, and my husband, an Irish citizen who had been living in Northern Ireland for several years before he married me a year ago, moved us to Ireland to be near his family. We used up most of our savings to get here and we have been looking for work nonstop since we arrived. We have good skills and are employable. I have my GNIB card and we have PPSN numbers. We have rented a house and are permanent residents. We have no remaining ties to the US.

My husband believed that when we got here we could register for temporary assistance for a little while until we found work. Unfortunately we got turned down because they said he could not prove we were "habitual residents". I am a diabetic and have high blood pressure. We applied for medical cards but when we called for information, we were told we would not qualify unless we have an income or were on other benefits. There's nothing in their published guidelines about this!

We have only about two months rent and bills left in savings. My husband's family is not in a position to help us much (we really thought we could help them when we found work). I have about two months worth of medications left but I need to be checked and to have my blood pressure medication re-evaluated. I'm very concerned about my health and our future.

Folks, we took a chance and we did our best based on the information we had. Chances are we could still find work in the next couple months, but I'm starting to get very anxious. We don't want to be on assistance at all unless we have to be, but it looks very much like we might have to, especially for my health issues. What can we do?
 
Have you tried the citizen's advice service, maybe they can be of some help to you. Looks like you need to pass the 'habitual residence' criteria. Can you do that?
 
Bronte said:
Have you tried the citizen's advice service, maybe they can be of some help to you. Looks like you need to pass the 'habitual residence' criteria. Can you do that?
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I posted in my initial post, "Unfortunately we got turned down because they said he could not prove we were 'habitual residents'".

We believe we have enough ties to Ireland to prove habitual residency. We have a year-long house lease, bills in our names, Irish bank accounts (without much money in them, to be sure), evidence of permanently leaving our US home (plane tickets, shipping documents, lease cancellation, etc.), evidence of family living in the same Irish county, Irish car registry and insurance paid for the whole year, and more. He can show a day-by-day log of his attempts to find work. He has registered with the job board.

The caseworker flatly refused to consider our evidence and even repeatedly told my husband, a passport-holding Irish citizen, that he was ineligible to remain in Ireland more than three months. The refusal letter she sent said that we had failed to provide evidence that we actually did provide, misspelled his name, and gave the wrong PPS number. When we called to let them know, she reissued the same letter with his name and PPS number corrected, but no other changes.

The citizens' advice representative told us we should not even bother to apply as we would be sure to be turned down. I need to see the doctor quite urgently (my blood pressure is spiking) but I am afraid to go without a medical card in hand.
 
Would it be worth your while seeing what benefits you can get in Northern Ireland if your husband was working there? Could he sign on there and then transfer his claim down here?
 
dereko1969 said:
Would it be worth your while seeing what benefits you can get in Northern Ireland if your husband was working there? Could he sign on there and then transfer his claim down here?
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I can't live in the UK for more than 6 months, because I am not an EU citizen and I do not have any right of residence. My husband would need to make almost 20K GBP to get me a spouse visa. He could go back to Northern Ireland if he had to, but I could not receive medical benefits, be eligible to work, or stay in the UK without permission from Immigration.

I don't know about whether he could file a claim in Northern Ireland and get it transferred down here. On what basis could he make the claim, if he lives in the Republic?
 
By the way, thanks to those who have replied. I don't mean to sound like I am questioning everything you say. The situation is just extremely frustrating. Strictly speaking by EU rules this should not be happening, but Ireland and the UK are ignoring them. :(
 
yankeewife said:
We believe we have enough ties to Ireland to prove habitual residency. We have a year-long house lease, bills in our names, Irish bank accounts (without much money in them, to be sure), evidence of permanently leaving our US home (plane tickets, shipping documents, lease cancellation, etc.), evidence of family living in the same Irish county, Irish car registry and insurance paid for the whole year, and more. He can show a day-by-day log of his attempts to find work. He has registered with the job board.

The caseworker flatly refused to consider our evidence and even repeatedly told my husband, a passport-holding Irish citizen, that he was ineligible to remain in Ireland more than three months. The refusal letter she sent said that we had failed to provide evidence that we actually did provide, misspelled his name, and gave the wrong PPS number. When we called to let them know, she reissued the same letter with his name and PPS number corrected, but no other changes.
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Isn't there an appeals process?


I presume you have looked at the Welfare website. It seems to me that your husband should qualify. It strikes me as odd that Citizens Advice told you not to bother applying.

Then read the Operational Guidelines

Have you spoken to Safe Home Ltd

Safe-Home Ltd. and returning Irish emigrants

Arrangements were agreed with Safe-Home Ltd, a registered charity, to assist with the difficulty experienced by a minority of returning Irish emigrants in demonstrating their intention to live here permanently for the purposes of satisfying the HRC.
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7.2 - Length and purpose of any absence from Ireland

Habitual residence may be lost where a person spends time away. This may apply in the case of an Irish national who gains stable employment abroad, or a non-Irish national who returns to his/her own country or settles in a third country following a period of residence here. Status as a former worker under EC law is lost when such a person leaves the country for a significant period.
Infrequent return visits or the purchase of a home abroad may point to transfer of the main centre of interest to the other country. On the other hand, established habitual residents of Ireland who have periods of temporary or occasional absence may still be habitually resident during such absences. If a person who is working abroad returns at regular intervals to Ireland e.g. to visit family or because a home has been retained here, it is possible that the main centre of interest remains in Ireland. ( See also Appendix 1 re: international workers who are deemed to be habitually resident in the country under whose social insurance scheme they have been retained, even though they are temporarily working elsewhere.) However, it should be borne in mind that the HRC can only be applied at the date of application for the particular payment to which the condition applies ( see Part 6).
Returning migrants or Resuming previous residence

A person who had previously been habitually resident in the State and who moved to live and work in another country and then resumes his/her long-term residence in the State may be regarded as being habitually resident immediately on his/her return to the State.
In determining the main centre of interest in such cases the DO should take account of:

  • purpose of return e.g. expiry of foreign residence permit
  • the applicant's stated intentions
  • verified arrangements which have been made in regard to returning on a long-term basis e.g. transfer of financial accounts and any other assets, termination of residence based entitlements in the other country, or assistance from Safe Home ( see below) or a similar programme to enable Irish emigrants to return permanently
  • length and continuity of the previous residence in the State
  • the record of employment or self employment in another State and
  • whether s/he has maintained links with the previous residence and can be regarded as resuming his/her previous residence rather than starting a new period of residence.
Replies to the following questions may assist in determining whether an applicant has retained or resumed his or her main centre of interest in Ireland after a period spent abroad:

  • how long did the applicant live in Ireland before leaving?
  • why did the applicant come to Ireland originally?
  • when and why did the applicant leave Ireland?
  • how long did the applicant remain or intend to remain abroad?
  • did spouse/civil partner and children, if any, also leave Ireland?
  • was accommodation retained in Ireland?
  • if the applicant owned property in Ireland, was it let, and was the lease timed to coincide with the applicant's return to Ireland?
  • what links did the applicant keep with Ireland?
  • can the applicant verify cessation of employment, lease or rental agreement etc. abroad?
  • when and why did the applicant return to Ireland?
  • have there been other brief absences? If yes, obtain details.
The following examples are acceptable as proof of permanent return to Ireland: (Allow 28 days for documentation to be submitted)

  • Documented evidence of transportation of personal possessions
  • Proof of cessation of employment
  • Proof of termination of lease on rented property or proof of sale of home
  • Evidence of closure of financial accounts and transfer of funds
  • Evidence of completion of studies abroad (where applicable)
  • Copy of passport and expiration of visa at the time they returned
(In a case where a person says they were resident illegally in a country outside the EEA, the entry visa to that country, stamped on their passport, will clearly show the permitted duration of their stay in that country. For example, a person who went to the USA in 2007 and was granted an entry visa to remain there for 90 days but continued to live there until 2009, that person was resident in the USA illegally after the expiry of the 90 days. In a case like this, the fact that a person cannot return to that particular country, would mean that they may be likely to be habitually resident in Ireland).

This list is not exhaustive.​
It should be noted that periods spent in prison in Ireland do not accrue towards residency for habitual residence purposes.
Safe-Home Ltd. and returning Irish emigrants

Arrangements were agreed with Safe-Home Ltd, a registered charity, to assist with the difficulty experienced by a minority of returning Irish emigrants in demonstrating their intention to live here permanently for the purposes of satisfying the HRC.


To assist with this issue, Safe-Home has drawn up a check list of a range of documents that will help customers show that they have returned to Ireland permanently.


Safe-Home has also designed a declaration which will confirm where a customer is engaging with them as part of their repatriation. It is intended that the declaration will be associated with any social assistance claim a customer might make. This measure should help to expedite the decision-making process in these cases as it can be accepted as proof that the customer has returned to reside in the State on a permanent basis.
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The caseworker flatly refused to consider our evidence and even repeatedly told my husband, a passport-holding Irish citizen, that he was ineligible to remain in Ireland more than three months.
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That alone needs to be highlighted to the appeals service. That is ignorance of the highest order.
 
Thank you, Brendan.

My husband has started the appeal process. Unfortunately it doesn't seem clear whether he can be considered a previous habitual resident since he has only resided just over the border in Northern Ireland and not in the Republic itself. He did retain his Northern Irish address while he was in the US, though. Since Northern Ireland is in the Common Travel Area, we thought it would count. If the caseworker doesn't even understand that he has full Irish citizenship, I'm not sure she would understand that, though. He has given up his former residence in Northern Ireland and even closed his bank account there to show that he is serious about moving here.

As far as the other requirements, we appear to satisfy everything except actual employment in the Republic, which we are trying hard to obtain.

We thought it was odd that Citizens' Advice was so dismissive as well, and we have no idea why. We didn't arrive without any funds or ties at all. We're not refugees. We can't just turn around and return to the US now since I have no family or job there and we have no place to go. Hopefully the appeal will sort things out.

If you can think of anything specific we might do that has worked in other cases, I'd be grateful if you could let me know. A job offer wouldn't hurt. :)

EDIT: I noticed you posted about Safe Home after I posted this. Yes, we did actually engage with them. They sent us a packet explaining habitual residency and told us they were really only intended for senior citizens intending to retire in Ireland (we're not young, but we're not that old). They did not supply us with the letter saying we had engaged with them. I guess it's time to call them back.
 
Time, it was a hoot listening to him explain to the appeals officer that the caseworker was "trying to kick him out of the country". The caseworker had literally told him in so many words to go back to Northern Ireland, even though he explained that I could not live there. As for ineligibility to remain, it would be odd for me to receive a GNIB card with Stamp 4 if my Irish spouse wasn't himself allowed to stay, eh. :)
 
yankeewife said:
..it doesn't seem clear whether he can be considered a previous habitual resident since he has only resided just over the border in Northern Ireland and not in the Republic itself.
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Just to confirm - was your husband born and raised in the Republic? What age was he when he left (fulltime residence in the Republic) and how long ago was that?
 
Orka, my husband has dual Irish/UK citizenship because he was born in Northern Ireland. He left for a few years during the worst of the Troubles (his area was hit particularly hard) to live in England. He returned about 10 years ago to care for his elderly mother in Northern Ireland. He left Northern Ireland to join me in the US (before that, we had a long-distance marriage) to see if he could find work. Then I lost my own job and we came back. He was only in the US temporarily.

Since he was "in Ireland", and has been an Irish citizen from birth, we did not expect to run into so much trouble.

We understand that we don't have any National Insurance contributions. If we could find jobs, and we're trying, that would be a moot point. We aren't asking for any of the benefits that depend on NI contributions, because we understand we are not entitled.
 
I think that's probably the issue - that your husband was never habitually resident in the Republic so isn't covered as a 'returning habitual resident'. I think in the long quotes above (post #7 re. habitual residence), the 'State' refers to the Republic, not the whole island. The only reference I could find (admittedly not a long time searching) with respect to NI residence was that if someone had lived in the common travel area (GB and NI) for two years immediately prior to moving to the Republic, they would probably qualify as habitually resident. But because, you and your husband are coming from outside the common travel area, it looks like you do unfortunately fail the habitual residence test in the Republic (whereas he would probably pass in NI).

It doesn't look like being from Northern Ireland helps with respect to habitual residency (I could be wrong because a lot of rules in the Republic make exceptions for NI) and welfare entitlements.
 
OK, that makes sense for him not to be considered as a "returning habitual resident". Admittedly that was kind of a long shot. We will have to see if we can prove habitual residency in the other ways. Thanks, wish us luck.
 
Did you contact Safe Home?

I would imagine that they would have plenty of experience in this particular area and they have been set up to help returning emigrants.

Brendan
 
You can appeal the decision. However in my experience this can take up to 2 years to be heard. Ironically by the time the appeal is heard, then it's very likely it will rule in your favour as you will have demonstrated your habitual residence by still being in the country.
In the meantime you should try to approach your local Department of Social Protection's representatives (formerly known as Community Welfare Officers (CWOs)) and try to apply for an Exceptional Needs Payment.
http://www.citizensinformation.ie/e...fare_schemes/supplementary_welfare_allow.html
 
yankeewife said:
The situation is just extremely frustrating. Strictly speaking by EU rules this should not be happening, but Ireland and the UK are ignoring them. :(
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While I appreciate your situation, I have to point out that that statement simply is not true. The member states are fully entitled to take steps to ensure that people arriving on their shores do not promptly turn around and become a burden on the state. And this is exactly what Ireland has done.

All EU citizens are required to meet the same habitual residence conditions regardless of whether they have an Irish passport or a passport from one of the other member states and this is how it should be under EU rules.

Having read the habitual residence conditions, I must say I fail to see how you could expect to qualify because as far as I understand from your information, your husband has never lived within the Irish State (as opposed to the island of Ireland) for any significant period of time up to now. Nor for that matter has he lived in NI for the preceding two years.

I hope it works out for you because it is a terrible situation to be in, but am not at all optimistic. Is there any chance you could get some kind of support from the US government or a US based support group, I wonder.
 
Yankeewife, if you need medical attention please go to a doctor and worry about paying later. See if you can get a recommendation from someone. While you may have to pay the bill later, a sympathetic doctor may be able to monitor you and give you samples of medication to keep you going until you can pay.

Good luck with the job hunt!
 
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