# Habitual Residence



## quarterfloun (24 Feb 2010)

If you are from the UK, living in Ireland, in a house, your three children go to an Irish National School why is this not considered appropriate to qualify you for habitual residence?

They are not claiming child benefit in any other country so surely evidence such as a letter from the school principal or a check with the DoE should suffice. This money is the difference between living and going hungry. 

They are living in accommodation that they pay €1 rent for (long story but the house they live in is 1/4 of a development site twinned with my property) but they don't want it vandalized so everyone is a winner. 

The developer is not registered as a landlord - he has never even collected the "rent" so they can't provide that. 

Anybody got any ideas?


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## pudds (24 Feb 2010)

Tis quite complicated.

Habitual Residence


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## Welfarite (25 Feb 2010)

The main condiiton for HRC is living here for previous 2 years and periods in UK are taken into consideration. Nothing to do with proving kids are at school here or that they are paying rent here. What is the exact story on their length of residency and their past history in this regard?


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## loli (26 Feb 2010)

Welfarite, where did you get that information that "The main condition for HRC is living here for previous 2 years"? The official website of the Dept of social and family affairs says:

Irish and European law set down the following five factors to be considered when deciding if you are habitually resident:

*Your main centre of interest,* based on facts such as: 
whether you own or lease a home here, 
where your close family members live, 
whether you belong to social or professional associations here, and 
any other evidence or activities indicating a settled residence in Ireland 

*The length and continuity of your residence in Ireland or other parts of the Common Travel Area* 
*The length of and reason for any absence from Ireland. For example, you can spend time on short holidays, studying or travelling outside of the Common Travel Area and still be regarded as habitually resident here* 
*The nature and pattern of your employment, if any* 
*Your future intention to live in the Republic of Ireland as it appears from the evidence* 
We will consider the five factors equally when making a decision. The evidence we use for each factor depends on the facts of your case.

There is nothing about 2 years. In fact, we are in a situation now where we are trying to to prove that we are "habitually resident" here, we are living in Ireland for the last 6 years, bought a house here 4 years ago, our daughter was born here and has an irish passport and yet the community welfare officer told us we might have problems with the HRC. So I honestly don't know HOW they decide, I think it depends on the mood of the deciding officer and actually I have a suspicion that the reason they have no definite conditions for one to pass the habitual residency test is to be able to get rid of non-nationals. Sad.


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## quarterfloun (27 Feb 2010)

Welfarite said:


> The main condiiton for HRC is living here for previous 2 years and periods in UK are taken into consideration. Nothing to do with proving kids are at school here or that they are paying rent here. What is the exact story on their length of residency and their past history in this regard?


 
Been here 8 months, never been back to England since they got here. It has to be some form of State sponsored  vindictiveness - I can't see why else they would be subjected to this. They  live here, cut all their ties with the UK etc. etc. so "proving" that you live here should be straightforward. Bank Statements, bills, the school roll are not "Proof"

I bet the revenue will treat them as habitually resident when it suits them.


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## Welfarite (27 Feb 2010)

Section 246 of the Social Welfare Consolidation Act 2005 provides that:
"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 he 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." 
Section 30 of the Social Welfare and Pensions Act 2007 added the following to the above:
"(4) Notwithstanding the presumption in subsection (1), a deciding officer or the Executive, when determining whether a person is habitually resident in the State, shall take into consideration all the circumstances of the case including, in particular, the following:

the length and continuity of residence in the State or in any other particular country;
the length and purpose of any absence from the State;
the nature and pattern of the person's employment;
the person's main centre of interest, and


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## Welfarite (27 Feb 2010)

quarterfloun said:


> Been here 8 months, never been back to England since they got here. It has to be some form of State sponsored vindictiveness - I can't see why else they would be subjected to this. They live here, cut all their ties with the UK etc. etc. so "proving" that you live here should be straightforward. Bank Statements, bills, the school roll are not "Proof"
> 
> I bet the revenue will treat them as habitually resident when it suits them.


 
But why are they subject to HRC if they have continually lived in teh commom travel area. Would it be a case of moving from NI which complicates thigns; they might be considered 'welfare tourists'.


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## Black Sheep (27 Feb 2010)

I don't understand where the Habitual Residence issue is coming from.

Have you been turned down for Child Benefit on Habitual Residence grounds of what exactly is the problem. Perhaps I am mis-understanding something here.

There is *no* Habitual Residence condition applying to former UK residents living in Ireland


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## Papercut (27 Feb 2010)

Are both parents now living in ROI? Has either parent previously claimed Child Benefit from HM Revenue & Customs in respect of these or other children?


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## Questionable (2 Mar 2010)

There is no 2 year rule any more, this was challenged by the European Commission and was amended.


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## Welfarite (5 Mar 2010)

Questionable said:


> There is no 2 year rule any more, this was challenged by the European Commission and was amended.


 
Have you a link for this amendment?


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## gipimann (5 Mar 2010)

The "2 year rule" should not be considered the sole or main factor in determining HRC - it is one of the 5 factors to be considered equally.

There was a practice of just looking at the "2 year rule" to determine HRC, however it was found that persons who lived in the UK for 2 years (regardless of nationality) were getting around the HRC qualification on the basis of their residence in the UK.

From the guidelines for Deciding officers on HRC -
_The presumption in Section 246 (1) does *not* mean that an applicant is automatically considered to be habitually resident in the State because he or she has been here (or in another part of the Common Travel Area) for 2 years or more. _

_Also subsection (1) does not mean that an applicant can be automatically considered to be "not habitually resident" because he or she has not resided here for 2 years._


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## Wolf1 (25 Apr 2010)

I am interested to hear if you are still having problems or if anyone else is.


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## tenchi-fan (25 Apr 2010)

If I want British citizenship I would need to live in the UK for 5 years. You're sort of bound by the laws of the country you visit.. it's nothing got to do with state vindictiveness.


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## quarterfloun (26 Apr 2010)

tenchi-fan said:


> If I want British citizenship I would need to live in the UK for 5 years. You're sort of bound by the laws of the country you visit.. it's nothing got to do with state vindictiveness.


 
Fair enough....but if you live here you live here and therefore are habitually resident. If the terminology were correct and the phrase "need to live here for five years to qualify" was used instead of "habitually redsident" then no problem. 

When I emigrated to the UK in 1985 I was not treated like this. I filled a form in and a week later I was getting just enough to live on which is what this is all about - basic sustinence.


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## quarterfloun (26 Apr 2010)

Welfarite said:


> Section 246 of the Social Welfare Consolidation Act 2005 provides that:
> "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 he 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."


 
As far as I know the UK is CTA........as they lived all their lives there I think they fit the 2yr requirement.


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## Welfarite (27 Apr 2010)

quarterfloun said:


> If you are from the UK, living in Ireland, in a house, your three children go to an Irish National School why is this not considered appropriate to qualify you for habitual residence?


 


quarterfloun said:


> As far as I know the UK is CTA........as they lived all their lives there I think they fit the 2yr requirement.


 
I'm confused now. If they are from CTA why was HRC raised by you in original post? HRC (and 2 year condition) does not arise.


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