Since the State’s last examination, the Government has engaged retrogressive measures which have impacted on the accessibility of the social security system particularly in relation to immigration concerns. For example, many people who would otherwise be eligible are regularly denied different forms of social protection, including Child Benefit, because of the application of the Habitual Residence Condition.1 The Condition is not defined in legislation but it has been interpreted to mean that you must be able to prove a close link to Ireland.2 The State Report refers to the introduction of the Habitual Residence Condition following EU enlargement in May 2004 as an extra qualifying criteria’.3 Between May 2004 and September 2005, some 133,258 Personal Public Services Numbers (PPSN) were issued to migrants from the ten EU accession states. While the Government was initially concerned about potential ‘welfare tourism’, this turned out to be unwarranted as checks carried out by the then Department of Social and Family Affairs (now Department of Social Protection) indicated that in 70 per cent of cases, these PPSN holders were paying tax while the outward migration flow indicated that many came to Ireland for a short period of time and left again.4 Furthermore, only 3.4 per cent of workers between May 2004 and July 2005 applied for social welfare payments (including Child Benefit).5
Despite the evidence that the majority of new migrants came to work rather than claim social protection, in 2009 a ‘right to reside’ test was introduced to supplement the existing Habitual Residence Condition test.6 The Habitual Residence Condition has been found to have a disproportionate impact on non-Irish nationals;7 these include amongst others, asylum seekers who can never be deemed habitually resident,8 victims of domestic violence,9 EU migrants,10 and Roma.11 Irish applicants, most notably Travellers12 and returning Irish emigrants13 are affected to a lesser extent but have also been refused payments on the basis that they do not satisfy the condition. Both the European Commission against Racism and Intolerance (ECRI)14 and the UN Independent Expert on Human Rights and Extreme Poverty15 noted the detrimental impact of the Condition on marginalised groups.
Figure 3: Case study – Failures of the social protection system to safeguard the rights and entitlements of a family seeking asylum
In 2013, the Ombudsman published an investigation into the circumstances of an asylum-seeking woman who had applied for a social welfare payment.16 The case highlighted a number of failures and weaknesses at different levels of the social protection system. The applicant applied for asylum in 2007 with her two teenage daughters and lived in Direct Provision. In 2008, the youngest daughter, who had suffered mental health difficulties, attempted suicide. The family left direct provision accommodation and the mother applied for a payment as the small direct provision allowance had been withdrawn and the family had no money. Initially she was refused any payment on the basis that she had left direct provision but the Social Welfare Appeals Office held this was not a valid reason for refusal. Following this successful appeal, the initial decision-maker refused to implement the Appeals Officer’s decision and instead reopened the case and found that the mother did not satisfy the Habitual Residence Condition following a recent change in the law to exclude all asylum seekers. In the meantime, the youngest daughter was placed in foster care while the mother and eldest daughter had no choice but to return to Direct Provision meaning that the social work team could not reunite the family as conditions in the hostel were not deemed adequate. She could not apply for civil legal aid and was instead assisted by FLAC (the Free Legal Advice Centres). The mother lodged a complaint with the Ombudsman who launched an investigation into the case.
The entire process from the initial social welfare application in 2008 took almost five years to complete due to delays at the initial decision-making level, the backlog of social welfare appeals and the incorrect decision-making at the outset. Although the woman received a back-payment of arrears as well as compensation, her daughter turned 18 in foster care and could not be reunited with her family interfering with the right to family as well as other fundamental rights.
Migrant workers who have paid social insurance contributions also experience difficulties in accessing social security payments due to their immigration status. These include international students, undocumented migrants and those registered as family dependents of employment permit holders who have worked and paid both tax and social insurance contributions but cannot avail of social security payments including Maternity Benefit, Illness Benefit, Disability Allowance as required as their contributions are deemed illegal.17 Migrant workers in this situation can claim a refund of the contributions but there is no mechanism for ensuring that these can be validated at any point even when a person’s immigration status has later been regularised.
Furthermore, some legally resident migrants do not claim social security payments to which they are entitled because they fear that it will negatively impact their application for Irish citizenship. As citizenship applications are decided at the discretion of the Minister for Justice and Equality, reliance on social security, even for a short period of time, has been used to refuse applications. This has happened even where someone has had to avail of social security due to a situation of domestic violence, becoming unemployed, or falling ill and claiming a payment while unable to work.18
Child and Family Supports
Child Benefit is a social welfare payment intended to support parents with the cost of raising a child. In April 2014, it was paid in respect of more than 1.174 million children.19 Despite the fact that Child Benefit is described as a ‘universal’ payment,20 as it is subject to the Habitual Residence Condition, certain groups of children are denied social protection because of their parents’ immigration status or migration history. This has particularly impacted on the children of asylum seekers,21 other migrants,22 Travellers23 and Roma.24
A state-commissioned 2013 report on child and family income supports noted that while expenditure on cash benefits to families with children was high, Ireland still had a higher child poverty rate than the average rate in other member states of the Organisation for Economic Cooperation and Development (OECD).25 Furthermore, the Department of Social Protection’s own analysis of Budget 2013 found that households with children were most negatively impacted by the changes to welfare rates and eligibility criteria.26 The cumulative impact of successive cuts to child income supports since 2008 has resulted in a monthly reduction of almost €100 for families with three or more children.27 Reforms to Child Benefit and targeted supports for low income families have been recommended but have not yet been implemented by the Government. The denial of Child Benefit to some migrant families amounts to indirect discrimination based on immigration or residence status, placing certain minority children at a social and economic disadvantage.
New rules for one parent families have restricted their access to social protection. According to Census 2011, there are more than 215,000 lone parent families living in Ireland, mostly headed by mothers.28 One Parent Family Payment (OPFP) is a social welfare payment to support single mothers or fathers on low incomes who are parenting alone. Prior to April 2011, a lone-parent could receive the payment if he or she met the qualifying criteria until his or her youngest child reached the age of 18 years. However, in 2012 new measures were introduced to reduce the age threshold of the youngest child for new recipients to 14 years in 2012, 12 years in 2013, 10 years in 2014 and to seven years in 2015.29 The aim of this policy was to bring more lone parents back into the workforce. This move was criticised30 on the basis that many lone parents could not afford the limited and privatised child care available in Ireland; the Minister for Social Protection responded by giving an undertaking that she would postpone the implementation of the amended legislation until the Government was in a position to offer a ‘Scandinavian model’ of childcare.31 However, the Minister has since stated that as the estimated cost of the proposed model is approximately €1 billion per year, funding is not available for this standard of childcare in the current economic climate.32 The changes have gone ahead without any changes to the childcare system with the result that more than 9000 recipients lost their entitlement to the payment in 2012 and 2013.33 The Department of Social Protection estimates that the changes will culminate in a further 50,000 people leaving the scheme over the course of 2014 and 2015.34
Furthermore, recipients of One Parent Family Payment were previously allowed to earn up to €146.50 per week in 2011 which would not be included in the means-test for the payment; this was reduced to €90 in 2014.35 The aim is to reduce it to €60 per week in 2016 for both new and existing recipients. This is viewed as both a challenge and a potential disincentive for lone parents wishing to engage in part-time employment during the time when they are not actively involved in child care.36
A self-employed person faces a number of difficulties in accessing social security supports, particularly when he or she cannot work due to unemployment or sickness. In the first quarter of 2014 there were more than 318,000 self-employed people in Ireland, the vast majority of whom are male.37 The current social welfare system does not allow self-employed people to access contribution-based payments such as Jobseekers Benefit and Illness Benefit.38 Furthermore, self-employed people are less likely to make voluntary social insurance contributions therefore it is expected that a significant number of formerly self-employed persons will not be able to access a State Pension (Contributory) upon retirement.39 In addition, they risk inadequate income in times of unemployment, underemployment or illness. However, a review carried out by the Advisory Group on Tax and Social Welfare in 2013 found that there self-employed persons were not aware of their entitlements.40 The current means-tested Jobseekers Allowance is available to self-employed people in the majority of cases although the report recognised that the assessment process may be more complex than that for employees so it recommended simplifying it.41 The report also found that self-employed persons face difficulties in accessing social welfare payments when they are found to be permanently incapable of work because of a long-term illness or incapacity.42
Measures such as the Qualified Adult Allowance43 compromise economic independence, security and opportunity for many women. More than 90 per cent of Qualified Adults are women who do not have independent entitlement to social protection payments in their own right but receive a derived payment paid to their spouse or partner on their behalf. 44 Qualified adults can be invisible and may face significant obstacles in entering or re-entering the labour market.
FLAC urges the Committee to recommend that the State:
Subject the Habitual Residence Condition to a human rights and equality impact assessment, in line with the 2012 recommendation of UN Expert on Human Rights and Extreme Poverty.
Give all workers, regardless of their immigration status, access to social security payments when they have made social insurance contributions. Applications for citizenship should not be influenced by a person exercising his or her right to claim a social security payment to which he or she is legally entitled.
End the discriminatory practice of excluding certain groups of children living in Ireland from access to the Child Benefit payment, including those based on their or their parents’ immigration status.
Provide adequate support for one-parent families to ensure they can care for their children and have access to affordable childcare arrangements.
Revise the social security system to ensure that self-employed people can access necessary payments based on their social insurance contributions.
Conduct a comprehensive survey on the Qualified Adults Allowance.
1 Section 246 of the Social Welfare (Consolidation) Act 2005 as amended.
2 There are five criteria contained in Social Welfare and Pensions Act 2007 to determine habitual residence: 1) The length and continuity of living in the State or another country; 2) The length and reasons for any absence from the State; 3) The nature and pattern of the person’s employment; 4) The person’s main centre of interest; and 5) The future intentions of the person applying for the social welfare scheme.
3 State Report, para.180.
4 E. Quinn, (2006) Policy Analysis Report on Asylum and Migration: Ireland Mid-2004 to 2005, Dublin: European Migration Network, p.26.
5 Migrant Rights Centre of Ireland (2005) Social Protection Denied: the Impact of the Habitual Residency Condition on Migrant Workers, Dublin: MRCI, p.30.
6 Section 15 of the Social Welfare and Pensions (No. 2) Act 2009 amends s.246 of the Social Welfare Consolidation Act 2005 by inserting s.246(5), which provides that a person who does not have a right to reside in the State shall not be regarded as being habitually resident in the State.
7 In a response by Minister Joan Burton TD to a Parliamentary Question on 23 March 2011, she replied that out of 9693 refusals on the basis of the Habitual Residence Condition, 650 were in relation to Irish nationals whereas the remaining 9043 refusals related to non-Irish nationals.
8 FLAC (2009) One Size Doesn’t Fit All: A legal analysis of the direct provision and dispersal system, ten years on, Dublin: FLAC, pp.57-62.
9 Women’s Aid (2014) Women’s Aid input into FLAC Shadow Report under the International Covenant on Economic, Social and Cultural Rights, Dublin: Women’s Aid; Crosscare, Doras Luimni & Nasc (2012) Person or Number? Issues Faced by Immigrants Accessing Social Protection, Limerick: Crosscare, Doras Luimni & Nasc, p.37.
10 Social Welfare Appeals Office (2012) Annual Report 2011, Dublin: SWAO.
11 Health Service Executive and Pavee Point (2012) Roma Communities in Ireland: Child Protection Considerations, Dublin: HSE and Pavee Point; Nasc (2013) In From the Margins – Roma in Ireland: Addressing the Structural Discrimination of the Roma Community in Ireland, Cork: Nasc.
12 Pavee Point (2011) Irish Travellers and Roma Shadow Report: Response to Ireland’s Third and Fourth Combined Report under the International Covenant on the Elimination of All Forms of Discrimination (CERD), Dublin: Pavee Point.
13 Crosscare Migrant Project (2014) Review of Ireland’s Engagement with the Diaspora: Submission to the Department of Foreign Affairs and Trade, Dublin: Crosscare.
14 European Commission against Racism and Intolerance (2013) ECRI Report on Ireland (fourth monitoring cycle), Strasbourg: Council of Europe, pp.28-29.
15 Office of the High Commissioner for Human Rights (2011) Report of the independent expert on the question of human rights and extreme poverty, Magdalena Sepúlveda Carmona: Mission to Ireland, 17 May 2011, Geneva: OHCHR, pp.11-12.
16 Office of the Ombudsman (2013) Appeal Overruled: A failure to provide a basic income for a family seeking asylum, Dublin: Office of the Ombudsman.
17 Migrant Rights Centre of Ireland (2007) Life in the Shadows: An Exploration of Irregular Migration in Ireland, Dublin: MRCI, p.53.
18 C. Cosgrave (2011) Living in Limbo: Migrants’ Experiences of Applying for Naturalisation in Ireland, Dublin: Immigrant Council of Ireland, pp. 26, 44, 58 and 75.
19 Minister for Social Protection, Joan Burton TD, Parliamentary Questions: Written Answers, [22458/14], 27 May 2014.
21 S. Arnold (2012) State sanctioned child poverty and exclusion: the case of children in accommodation for asylum-seekers, Dublin: Irish Refugee Council.
22 Crosscare, Doras Luimni & Nasc (2012) Person or Number? Issues Faced by Immigrants Accessing Social Protection, Limerick: Crosscare, Doras Luimni & Nasc; Immigrant Council of Ireland (2014) ICI Response to FLAC Questionnaire for Shadow Report under the International Covenant on Economic, Social and Cultural Rights, Dublin: ICI; Barnardos (2014) Submission to Shadow Report for Ireland on the International Covenant on Economic, Social and Cultural Rights, Dublin: Barnardos.
23 Pavee Point (2011) Position Paper: The Impact of the Habitual Residence Condition on Travellers and Roma, Dublin: Pavee Point; End Child Poverty Coalition (2014) Pre Budget Submission 2015, Dublin: ECPC.
24 Nasc (2013) In From the Margins – Roma in Ireland: Addressing the Structural Discrimination of the Roma Community in Ireland, Cork: Nasc.
25 Advisory Group on Tax and Social Welfare (2013) First Report: Child and Family Income Supports, Dublin: Department of Social Protection, p.11.
26 Department of Social Protection (2013) Social impact assessment of the main welfare and direct tax measures in Budget 2013, Dublin: Department of Social Protection, p.1.
27 Children’s Rights Alliance (2014) Report Card 2014, Dublin: Children’s Rights Alliance, p. 79.
28 Government of Ireland (2012) Census 2011 Profile 5: Households and Families, Dublin: Stationery Office, p.22.
30 Three organisations including the One Parent Exchange Network (OPEN), the National Women’s Council of Ireland (NWCI) and Barnardos established the ‘Seven is too young’ campaign.
31 Minister for Social Protection, Joan Burton TD, Parliamentary Debates, Social Welfare and Pensions Bill 2012: Second Stage Speech, 18 April 2012.
32 Minister for Social Protection, Joan Burton TD, Parliamentary Questions: Written Answers, [51045/13], 27 November 2013.
33 Minister for Social Protection, Joan Burton TD, Parliamentary Questions: Written Answers, [9207/14], 25 February 2014.
34 Minister for Social Protection, Joan Burton TD, Parliamentary Questions: Written Answers, [9207/14], 25 February 2014.
35 One Family (2014) One-Parent Family Payment & Income Disregards, Dublin: One Family, p.1.
36 One Family (2014) One-Parent Family Payment & Income Disregards, Dublin: One Family, p.1.
37 Central Statistics Office (2014) Quarterly National Household Survey: Quarter 1 2014, see table 5.
38 Citizens Information Board (2012) Hard Times for the Self-Employed, Dublin: CIB, p.29.
39 Citizens Information Board (2012) Hard Times for the Self-Employed, Dublin: CIB, p.29.
40 Advisory Group on Tax and Social Welfare (2013) Third Report: Extending Social Insurance Coverage for the Self-Employed, Dublin: DSP, p.60.
41 Advisory Group on Tax and Social Welfare (2013) Third Report: Extending Social Insurance Coverage for the Self-Employed, Dublin: DSP, p.58.
42 Advisory Group on Tax and Social Welfare (2013) Third Report: Extending Social Insurance Coverage for the Self-Employed, Dublin: DSP, pp.55-6.
43 A qualified adult is a person in respect of whom a recipient of a social security payment receives a dependent’s allowance.
44 National Women’s Council of Ireland (2014) Budget Directions 2015: Pre-Budget Submission, Dublin: NWCI, p.11.
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