Case Studies » Unemployment » Jobseeker's Allowance - from 2016 Annual Report (ref: 2016/26)

2016/26 – Jobseeker’s Allowance & Supplementary Welfare Allowance

Summary decision

Question at issue: Eligibility (right to reside)

Background: The appellant had two short periods of employment in Ireland, having worked for seventeen weeks in 2014 and for a further ten weeks in 2015. He had been doing seasonal farm work which finished in August 2015. He made a claim for a basic income payment under the Supplementary Welfare Allowance scheme in November 2015 and a claim for Jobseeker’s Allowance in April 2016. Both claims were disallowed on grounds that he was not habitually resident in the State as he was held not to have a right to reside. In an appeal against those decisions, the appellant submitted that he was seeking further employment since finishing work in August 2015 and had remained in Ireland as a jobseeker.

Governing legislation: Section 141(9) of the Social Welfare Consolidation Act 2005 provides that a person must be habitually resident in the State for purposes of establishing entitlement to Jobseeker’s Allowance, while Section 192 outlines the same requirement in relation to Supplementary Welfare Allowance. The legislation governing application of the Habitual Residence Condition (HRC) is outlined in Section 246 of the Act and subsection (5) provides that a person who does not have a right to reside in the State may not be regarded as being habitually resident.

The legislation which governs the rights of European citizens to reside in Ireland is outlined in the European Communities (Free Movement of Persons) Regulations 2015 (Statutory Instrument No. 548 of 2015). Article 6(2) prescribes that an EU citizen who has entered the State seeking employment continues to have a right of residence as long as he or she continues to seek employment and to have a realistic prospect of engagement.

Consideration: In determining whether the appellant had established that he had a right to reside, the Appeals Officer considered his presenting circumstances in accordance with Statutory Instrument No. 548 of 2015. Having done so, he noted the appellant’s employment in Ireland since he arrived first as a jobseeker: seventeen weeks in 2014 and a further ten weeks in 2015. He concluded that these periods of employment gave him a right of residence in accordance with Article 6(3)(d) of Statutory Instrument No. 548 of 2015. This prescribes that where a person has been employed for a period of less than one year and becomes involuntarily unemployed, he or she may retain a right of residence as a worker for six months after the cessation of employment. Accordingly, as the appellant ceased working on a date in August 2015, his right to reside as a worker ended on a date in February 2016, as he had not secured further employment within that six month period.

The Appeals Officer noted that the governing legislation, outlined in Article 17(2) of Statutory Instrument No. 548 of 2015, prescribes that a person whose right to reside derives from Article 6(2) of that Regulation is not entitled to receive assistance under the Social Welfare Acts. He noted further that the only question before him for appeal purposes was whether or not the appellant had established a right to reside and whether he could be held to meet the habitual residence condition for purposes of his social welfare claims. He concluded that it had been established that he had a right to reside in Ireland as a jobseeker in accordance with Article 6(2) of the European Communities (Free Movement of Persons) Regulations 2015 (Statutory Instrument No. 548 of 2015). With regard to the habitual residence condition, he was satisfied that the appellant could be deemed to be habitually resident in accordance with the statutory criteria provided in Section 246(5) of the Social Welfare Consolidation Act 2005. He noted, however, that the governing legislation prescribes that a person whose right to reside derives from Article 6(2) is not entitled to receive assistance under the Social Welfare Acts. He observed, therefore, that it was for the Department of Social Protection to determine whether the other statutory qualifying criteria were met in this case.

Outcome: Appeal allowed.