The Position of EU Jobseekers in the
Republic of Ireland
Saoirse Brady, FLAC Policy and Advocacy Officer
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FLAC (Free Legal Advice Centres)
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A independent human rights organisation
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Dedicated to the realisation of equal access to justice for all
using the law as a way to achieve change
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Established in 1969 by law students to campaign for the
introduction of a comprehensive civil legal aid scheme
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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
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Social welfare law reform
Information guides
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Guides to making a social welfare application, social welfare appeals and the
Habitual Residence Condition
Strategic casework
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Application of Habitual Residence Condition to different categories of people asylum seekers, refugees, EU migrants, non-EU nationals, Irish citizens
Second tier advice
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Citizens Information Centres and NGOs working on social security issues
Policy work and critical analysis
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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
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Irish SNCBs Listed in Annex X
Annex X of EC Regulation 883/04 lists the following
payments as SNCBs in Irish social welfare system:
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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
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The Joint Oireachtas (Parliamentary) Committee on Jobs, Social
Protection and Education report March 2012
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
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(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
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Right to Reside Test
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Question of law
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More frequently used by the Department of Social Protection
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Introduced into legislation in December 2009
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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:
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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
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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
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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
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Partner’s income taken into account
Must be habitually resident
Must be capable of work
Must be genuinely seeking and available for work
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Previously this criterion was used to prevent Romanian and Bulgarian
nationals without a work permit from qualifying for JA
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
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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:
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“...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:
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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
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Practical differences between payments
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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 parttime 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.
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Figures on EU/EEA Jobseekers in Ireland
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In December 2012 there were 60,872 non-Irish EU nationals
on Live Register (Central Statistics Office)
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In 3rd Quarter of 2012, according to the Quarterly National
Household Survey there were at least 38,700 unemployed
non-Irish EU nationals
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This figure may include people in receipt of JB or JA
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:
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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
Social Welfare Appeals
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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.
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However, appellants have no entitlement to access previous
decisions which may be relevant to their appeal.
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Concerns
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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
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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
Conclusions
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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
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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
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Further information
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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
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