5. Who does or does not have a right to reside? Before a decision can be made regarding a persons habitual residence, it must first be established whether the person has a legal right to reside in the State. Subsections (5) to (10) of Section 246 were inserted in the Social Welfare Consolidation Act 2005 in December 2009 to put beyond doubt that residence, for the purpose of the habitual residence condition, means residence in accordance with a legal right to reside, not mere presence only. Subsection (5) explicitly states that a person who does not have a right to reside in the State cannot be habitually resident for social welfare purposes. The 5 factors need not be considered until the right to reside has been established. When issuing a decision the right to reside test and the 5 factors should be determined in the decision set out in the decision letter; otherwise they cannot be subsequently relied on at an Appeal of the decision. Who has a right to reside? Subsection (6) sets out a list of persons who shall be taken as having a right to reside. These include - 1. Irish nationals have a right of residence in Ireland. 2. Although not expressly referred to in subsection (6), UK nationals coming in from the Common Travel Area (CTA) also have a right to reside here under the CTA agreement. S.I. 97/1999 refers.
Posted on: Tue, 27 Jan 2015 14:09:42 +0000
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