Question re Child Allowance eligibility

Bit of a long story, but I'd be interested to see if anyone has some answers about this.

We had our first child back in 2007 and I went to make an application for childrens allowance, but was told I couldn't as the application had to be made by the mother.

The mother applied but the application was never approved as she couldn't satisfy the resident in Ireland requirement (I'm Irish but she's Russian and has a residents permit for Hungary where we split our time between their and Ireland).

When I enquired about changing the application back to my name, they said that even if they accepted the application from the father, that I would still have problems as I am self employed and I'd need to be an employee to satisfy the residency requirements.

At the time, I didn't follow it up and forgot about it. Recently though I'm getting kinda fed up with the way the self employed are been treated, so I might make a fresh application.

What I'd like to know is:
Under what circumstances can the application be made in the fathers name?
&
Is been self-employed enough to satisfy the Habitual Residence Condition?

Don't know if this makes a difference or not:
We own no property in Ireland (live in a flat added on to my parents home), but we do in Hungary.
I've been self-employed for 4 years and for tax purposes I'm resident in Ireland.
My wife doesn't work and we claim no other benefits
We split our time between Ireland and Hungary, the child attends a pre-school nursery there a couple of hours a week, she doesn't attend anything in Ireland

Think that's about it and I'd welcome peoples feedback.

You should apply for the allowance in Hungary, as that will be considered your primary location. Your spouse will never qualify for residency here unless she lives here full-time for 2 years.

OK, I don't have any of the references for this now, but from research in the past I understand it as follows:

Somewhere buried in the EU rules is a restriction which says that you can only claim one allowance per child and that that is to be in the country of the mother's residence, father's country of residence if mother is dead and legal guardian if both parents are dead - so Hungary in your case. Accordingly, your wife needs to make the application in Hungary and as far as I know you would not qualify for the allowance regardless of your employment status.

Jim.

This is from the Department of Social Protection's Operational Guidelines http://www.welfare.ie/EN/OperationalGuidelines/Pages/childben.aspx

WHO IS ENTITLED TO CHILD BENEFIT

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Child Living Full-Time With Mother/Step-Mother
Child Benefit is paid to the mother (or step-mother).

Child Living Full-Time With Father/Step-Father Only
Child Benefit is paid to the father (or step-father).






Child Not Residing Full-Time With Either Parent

1. Parents residing in separate households
   Child Benefit is payable to the parent with whom the child resides the majority of the time. If the child resides 50% of the time with each parent, the mother is paid.
2. Parents Dead/Children Abandoned/Child Fostered
   Child Benefit is payable to the woman who has care and charge of the child in the household in which the child lives (or the head of the household where there is no such woman in the household).
3. children In Institutions
   Where a child is placed in an Institution on a voluntary basis, Child Benefit is payable to the person who would normally get the benefit - provided that person is making adequate contributions towards the cost of the child's maintenance in the institution.
   Where the child is placed in an Institution through a Court Order, Child Benefit is only payable if the child returns home on a regular basis.

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Are you married? If you are married, then it may be that under EU Regulations that your wife does not have to satisfy habitual residence conditions. It is complicated though and will depend on whether you yourself have any other EU nationality that you can avail of, or if you have resided or worked in another EU country before coming back to Ireland (this is sometimes known as the Surrinder Singh principle)

If you have done so, then you can ask to be treated as an EU worker (which is actually more beneficial than being treated as an Irish citizen) and your wife would also acquire the same rights. Different considerations apply if you are not married.

EU citizens (and their spouses) are deemed to satisfy habitual residence condition for the purpose of child benefit.

The best thing to do would be to contact the likes of the Migrant Rights Centre of Ireland http://www.mrci.ie/ or the Immigrant Council of Ireland http://www.immigrantcouncil.ie/, both of whom would be experts in the application of EU law and could advise further.

Thanks for the replies. I have followed it up with a couple of places, but nobody seems to be able to point me to a definite answer. I've asked the Ask EU website and they've said they'll try and find some information.

To answer Ildánach, yes we are married and I do hold British citizenship as well, but haven't worked or paid taxes there. We also live together (all 3 of us).

The reason my wife has the Hungarian residence is that when she got her Irish registration, she needed a re-entry visa (might be called something else, not sure) every time she wanted to leave the country and as Ireland isn't in Schengen even going to Hungary was a PITB. With the Hungarian residence she has free movement through most of Europe and doesn't need anything to return home to Russia. To come to Ireland, she just needs to get a 6 months Visa which is fairly quick.

I wouldn't apply in Hungary as I don't pay income tax there and wouldn't trust them enough that they wouldn't create problems with my wife's resident permit when it's due for renewal.