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European migrant workers rights unprotected in Ireland for 1 and 1/2 years.

category national | eu | opinion/analysis author Monday October 31, 2005 16:58author by Mago Report this post to the editors

Complaint to the European Commission.

http://www.welfare.ie/publications/sw108.html

I find European Commission working too slow in this issue; anti-discrimination groups and unions don't seem to me to be taking it seriously enough, the general public is uninformed. At best, people show not much interest.
This is part of a complaint about the implementation of the Habitual Residence Condition by the Irish Government. Let me know what you think.

9. As far as possible, specify the provisions of Community law (treaties, regulations, directives, decisions, etc.) which the complainant considers to have been infringed by the Member State concerned:

· Non-discrimination in comparison to nationals.

"As the Court of Justice of the European Communities has decided, this applies not only to forms of "direct" discrimination but also to all forms of hidden ("indirect") discrimination where, in theory, a provision of national legislation applies equally to nationals and foreigners, but, in practice, is found to be disadvantageous for foreigners."
http://europa.eu.int/youreurope/nav/en/citizens/factsheets/eu/socialsecurity/equaltreatment/en.html

The advantage is for their own nationals and UK nationals too. Rules are clearly designed to stop other than these nationals claims. And the actual application is pushing it to exceptional degrees.

"Minister Mary Coughlan is committed to ensuring that no person whose circumstances are appropriate to the Irish social welfare system is disadvantaged by the introduction of the new condition. " Refering to Irish and British people.
"Every effort is made to find grounds for making a positive decision when cases are being considered." Refering to the design of the rules to make them disadvantageous only for certain nationalities.
"It is difficult to envisage circumstances where a returning Irish national would not meet this condition." Refering to the grievance for non-nationals.
http://www.welfare.ie/press/pr04/pr200804.html

The ministers stress the point that this is not based on nationality but in reality :
- How many Irish are turned down/allowed with short periods ?
- How many years are "foreigners" required to be allowed ?

· Collins -v- Secretary of State for Work and Pensions

European Court of Justice ruled that the “habitual residence” test in the UK « discriminates on the grounds of nationality against non-UK nationals of the European Community who come to the UK looking for work, and is thus contrary to the freedom of movement principle enshrined in the EC Treaty unless the UK Government can show that a period of residence is fundamentally important to establishing entitlement to jobseeker’s allowance ».
http://www.cpag.org.uk/campaigns/press230304.htm
while specifying that it « must not exceed what is necessary in order to be satisfied that the person concerned is in fact genuinely seeking employment in the member state in question ».
http://www.eubusiness.com/archive/Employment/040323124034.d1icyhau

--> I don’t understand the arguments that prove that a period of residence is fundamental for this kind of allowance in the UK, or how the same could apply in Ireland.
--> Although not specified, it is implied that this period must not be more than a few months but in some cases periods of up to 3, 4 years are not sufficient.
--> ?why does this period applies only to so-called ‘people from abroad’, as Irish or British nationals don’t require any period if the "Irish" Deciding Officer decides so.
--> If a European citizen came from EU market - as opposed to Mr. Collins case - they are connected to the ‘single market’. Therefore to the market of the member state.

author by Magopublication date Mon Oct 31, 2005 22:53author email Mago.Merlin at ozu dot esReport this post to the editors

"EU member states have adopted different policies on access to social assistance for newly arrived migrants from accession states." By Carl O'Brien, The Irish Times.
http://www.ireland.com/newspaper/front/2005/0930/2646594150HM1WELFARE.html

As far as I know, only Ireland and the UK have imposed restrictions on social welfare to those Europeans with access to work.
Anyhow, these restrictions are not only for the accession states. They apply retroactively.

author by Mago Merlinpublication date Thu Nov 03, 2005 18:13Report this post to the editors

Habitual Residence Condition
Some premises need to be changed here.
• Governments in Ireland and the UK are restricting rights to all the other European citizens; at the same time, they support a Constitution that’s claiming equality.
• Workers moving between EU countries pay the same level of taxes as static people in the country they arrive to. Nevertheless, they get less entitlements (if they become ill, or destitute, or have casual or part-time employment) as settled workers or inactive people, if those countries of arrival are Ireland or the UK.
• We are being sold that a Europe with less borders is being constructed. All workers moving across these borders had the same rights in 2004 and before. Some of them are losing them out since May 1st, 2004, when moving into the British Isles.

author by Mago Merlinpublication date Thu Nov 03, 2005 18:34Report this post to the editors

27 Oct 05 Welfare Benefits for EU Migrants Workers

Related Link: http://www.greenparty.ie/en/in_the_dail/speeches/27_oct...rkers
author by mmspublication date Thu Nov 03, 2005 20:29Report this post to the editors

State to relax restrictions on benefits for migrant workers



The Government is to relax restrictions on welfare benefits for migrant workers following evidence that they are placing some non-nationals at risk of poverty and homelessness, writes, Carl O'Brien, Social Affairs Correspondent.

A two-year ban on migrant workers from EU accession states obtaining social assistance was introduced last year due to Government fears that significant numbers of citizens could come here to draw welfare payments.

The Government move is also in response to European Commission concerns over the legality of the restrictions.

Commission sources have confirmed to The Irish Times that it believes the nature of the welfare ban is "incompatible" with aspects of EU law.

Minister for Social Affairs Séamus Brennan is expected to announce in the coming weeks that migrant workers who have worked in the State for a period of time will be entitled to social welfare benefits.

Changes were also made recently to allow the spouses of migrant workers who have worked here to draw child benefit, although these have not been publicly announced.

It is also expected that community welfare officers will be given greater flexibility in authorising short-term emergency welfare payments to migrant workers who do not have any other means.

Migrant worker support groups and homeless agencies say they are being approached regularly by accession state citizens - Polish, Lithuanian and Latvian citizens in particular - seeking food or shelter.

Siobhán O'Donoghue of the Migrant Rights Centre Ireland said: "The people we're dealing with who are experiencing hardship are typically workers who have lost their jobs, suffered injury or been exploited. They tend to be facing short-term difficulties, but they have no protection even if they have been paying taxes here."

A draft report by the Homeless Agency - the body which plans and administers State funds to homeless organisations in Dublin - into the effects of the welfare restrictions says all service providers have noticed an increase in demand from citizens of accession countries.

While there were predictions that the accession of 10 new EU member states would lead to "welfare tourism", official figures do not support this.

The National Consultative Committee on Racism and Interculturalism, a State advisory body, estimates that just 3 per cent of the 85,000 citizens from accession states that came here between May 2004 and April 2005 have applied for welfare benefits.

A spokesman for Mr Brennan yesterday declined to comment on plans to amend the welfare restrictions - known as the habitual residency condition - except to say a review would address any cause of hardship among migrant workers.

EU member states have adopted different policies on access to social assistance for newly arrived migrants from accession states.

author by mmspublication date Thu Nov 03, 2005 20:36Report this post to the editors

this article was published on the
23rd of September 2005 Irish times

State queried on welfare for EU immigrants
Carl O'Brien, Social Affairs Correspondent



The European Commission has raised concern over the legality of the Government's decision to refuse social welfare benefits to migrant workers.

A two-year habitual residence condition was introduced for social welfare assistance last year, in response to Government fears the accession of 10 new members to the EU could lead to a significant number of citizens coming here to draw welfare payments.

Officials from the European Commission have sent a "notice of infringement" to the Government over the extent to which benefits are being denied to EU citizens, The Irish Times has learned.

The Department of Social and Family Affairs yesterday confirmed it was in discussion with commission officials to clarify and address issues raised.

A spokeswoman for Minister for Social and Family Affairs Seamus Brennan said it was expected these discussions will be "concluded to the satisfaction of both parties by the end of this year".

While the Minister told the Dáil earlier this year he was not aware of hardship caused by the refusal of social assistance, homeless and immigrant support groups say there is increasing evidence of immigrants being put at risk of poverty and homelessness.

The Homeless Agency, a partnership body which includes representatives of voluntary and statutory service providers, is also conducting a study into the effects of the welfare restriction.

A number of groups representing migrant workers are due to meet with Mr Brennan next month, when they will discuss their growing concern over the impact of social welfare restrictions.

Voluntary groups say they are receiving requests for emergency support and assistance from migrant workers on a daily basis, while there are cases of non-nationals sleeping rough and in cars in recent months.

Siobhán O'Donoghue, of the Migrant Rights Centre, said changes were needed to ensure there was a safety net for the small number of people who find themselves without work.

"We're getting cases every week and they're just the tip of the iceberg.

"The kind of people affected by this provision are those who come here to work but end up unemployed through injury, illness or exploitation," she said.

"The consequences and impact of the restriction were not foreseen at the time it was introduced and are causing serious problems for migrant workers."

Just yesterday, said Ms O'Donoghue, the centre had to provide assistance to a 24-year-old Lithuanian who had arrived in Ireland to work, but had his passport and money stolen.

Philip Watt, of the National Consultative Committee on Racism and Interculturalism, said figures showed little evidence of migrants travelling here to access social welfare support.

"Between May 2004 and April 2005, 85,000 people have come here from accession states.

"Figures show there have been over 3,000 applications for social assistance, which amount to 3.5 per cent," he said.

author by Magopublication date Fri Nov 04, 2005 12:39Report this post to the editors

• NCCRI, SIPTU and other anti-discrimination groups and unions admit this is a serious case of xenofobia; at the same time, they haven’t even mentioned the issue to the general public.
• Unemployment Assistance is meant to help people with few or no means. For foreigners, not having stable jobs count against them, being the poorest who are discriminated against on social welfare (Factor 3 about Nature and pattern of the employment).
• "Your future intentions to remain in the State are short-term". Someone who wouldn't even know your face is using this statement as a ground to discriminate you against. But you are never asked about your intentions and nobody claims to be a trained psychic.

author by Magopublication date Sat Nov 05, 2005 20:21Report this post to the editors

·• A person "from abroad" may seek support from the Dept. of Education and Science (European funds for citizens living in Ireland) if they're studying with Failte Ireland or FAS; At the same time, not being "Habitually Residents", they’re not entitled to the same income support (rent, ...) by the Dept. of Social and Family Affairs as nationals.
• Irish people are known for their traditional sense of fair play and hospitality. They are putting up with a government that's making a disgrace of this country.
• Non-discrimination principles within a “social” EU are claimed over and over. A clear discrimination is permitted for interests of financial protection.

Some premises need to be changed here.

author by Magopublication date Sun Nov 06, 2005 18:57Report this post to the editors

• The period of residence "must not exeed what is necessary in order to be satisfied that the person concerned is in fact genuinely seeking employment" . Cases of people turned down after 4 years have been heard.
• Tax laws were unfair to foreigners (non-residents) home owners in Spain; European Commission passed that this "constitutes indirect discrimation on the grounds of nationality”. HRC discriminates to foreign residents in Ireland and the UK but, that is OK.

Just to name a few of the absurds out there, the aberration sidling up to the grotesque. Some premises need to be changed here.

>----- -------- Habitual Residence Condition -------- -----<
http://www.geocities.com/habitualresidencecondition/

author by Magopublication date Wed Dec 14, 2005 21:09Report this post to the editors

Changes in social welfare access for migrant workers
Carl O'Brien, Social Affairs Correspondent



Government restrictions on access to some forms of social welfare for migrant workers have been partially relaxed, it has emerged.

Under rules introduced in advance of the accession of new EU member states last year, access to social assistance was restricted for people not habitually resident in the State.

A Department of Social and Family Affairs circular sent to community welfare officers last month, seen by The Irish Times, provides new guidelines for the payment of supplementary welfare assistance to workers and former workers from countries in the European Economic Area (EEA).

The new circular says EEA workers or former workers will be eligible for the supplementary welfare allowance, a weekly payment designed to help people who have little or no income.

The revised guidelines do not allow for the payment to newly arrived job seekers, however.

The habitual residency condition (HRC) was introduced in May last year due to Government fears that significant numbers of people could come here to receive welfare benefits.

While there were predictions that the accession of 10 new EU member states could lead to "welfare tourism", official figures do not support this.

The circular points out that workers from other EEA countries should be treated in the same way as Irish workers in determining entitlement to the supplementary welfare allowance.

While the move will help address criticism from some support groups who say restrictions have placed migrant workers at risk of poverty, it will not apply to newly arrived migrant workers, who are classified as "job seekers".

The apparent relaxation of rules is the latest development in a number of changes to the way the habitual residency condition is interpreted.

Changes were made earlier this year to allow spouses of migrant workers who have worked here to draw child benefit.

This appears to have followed intervention by the European Commission, which served a warning notice on the Government on the grounds that some elements of the HRC may be contrary to EU law.

The particular areas of concern to the commission are that some payments, such as child benefit and the one-parent family payment, are considered to be family benefits under EU law and should not be subject to the HRC.

These issues are still under discussion between the department and the commission.

author by Magopublication date Thu Jan 19, 2006 17:34Report this post to the editors

Response from:
European Commission
Employment, Social Affairs and Equal Opportunities DG
Social Protection and social integration
Free movement of workers and co-ordination of social security schemes

__________________________________

I refer to your further complaint of October 2005.

As already stated in my letter of 24 January 2005, the Commission is currently examining the new Irish legislation introducing a habitual residence condition for the entitlement to certain Irish social benefits. After a bilateral meeting, the Irish authorities provided the Commission services with further comprehensive documentation on the practical application of this new legislation in Ireland.

As there are a number of complex legal questions involved, I would like to ask you for your understanding that our examination of this case takes some time. However, as already stated in my previous letter, I will keep you informed about the outcome of this procedure.

In the meantime, if you feel that your rights under Community are infringed by a decision of the Irish authorities in this field, I would advise you to consider taking action at national level. In particular you should ensure that you do not miss any deadlines for appeal.

Related Link: http://www.geocities.com/habitualresidencecondition/
author by Magopublication date Mon Feb 06, 2006 22:39Report this post to the editors

EUROPEAN COMMISSION
Employment, Social Affairs and Equal Opportunities DG
Social protection and social integration
Free movement of workers and co-ordination of social security schemes
Brussels, EMPL/E3 JT-CI-**** D(2005) 26151

Dear Mr. ***********,

As already stated in my previous letters, I have not been given an argument contradicting my claim that this is a clear case of discrimination and is against Community principles.

I would like to ask you for your understanding that my anger and disappointment might lead to a certain cynical tone in the text I am obliged to provide you with further comprehensive opinion on the origin and practical application of this “new” legislation in Ireland, for your perusal.
http://geocities.com/habitualresidencecondition/

In the meantime, as I feel that my rights under Community are not only potentially infringed by this legislation but the rights of all European migrant workers are (either by being turned down or required unnecessary appeals), and the rights of all citizens living and working in the British Isles (as they pay taxes which are discriminately administered), I must insist in asking for any complexities that might be able to justify this unjust situation and comparative grievance, for which the permissibility of the Commission is responsible. And rather than undermining my capacity to understand those complexities, especially the complexity about the compliance with the ‘Standstill Clause’, please, provide me with the opportunity to try and comprehend them and assess how long ‘currently’ means in order to examine the legislation and bring it to a final conclusion or is it simply a word of attrition.

I am respectfully asking you to do this for me.

Far from being complex, I can see it as simple as this: people from abroad are disadvantaged in the same circumstances and that is what the rules are designed for. Is there anything wrong in that statement?

Taking action at national level, as suggested, would not be good enough in these cases, where xenophobic prejudice, which originates and is boosted by this, is quite high to succeed.

If you did not mind me asking. Are Ireland and the UK the only countries where European citizens are discriminated against?

Yours truly,

****** ****.

author by Mago Merlin - Mago Merlinpublication date Fri Mar 03, 2006 17:34author email Mago.Merlin at ozu dot esReport this post to the editors

Response from:
European Commission
Employment, Social Affairs and Equal Opportunities DG
Social protection and social integration
Free movement of workers and co-ordination of social security schemes
Brussels,
EMPL/E3 JT/ek-CI-**** D(2006) 3381

Dear Mr. ****,

I refer to your further letter of January 2006 concerning the Habitual Residence Clause in Ireland. In this context, I would like to apologise that I have not yet informed you about the outcome of this case, since it is still open due to some other legal questions involved.

At Community level Member States' social security systems are coordinated, but not harmonised, in particular by Regulations 1408/71 and 574/72. These Regulations aim at ensuring that migrant workers and their family members do not lose their social security protection when moving to another Member State. However, Member States are free to determine the details of their national security systems as long as they respect the principles laid down in the Community Regulations, such as the principle of equality of treatment.

Regulation 1408/71 also contains the notion of habitual residence. Article 1 (h) clarifies that, for the purpose of this Regulation, "residence" means habitual residence. The European Court of Justice has consisently held that this notion has a Community-wide meaning and refers to the state in which the persons concerned habitually reside and where the habitual centre of their interests is to be found. In that context, account should be taken in particular of the employed person's family situation; the reasons which have led him to move; the length and continuity of his residence; the fact (where this is the case) that he is in stable employment; and his intention as it appears from the circumstances. The length of residence in the Member State in which the payment of the benefit is sought cannot be regarded as an intrinsic element of the concept of residence (see cases Di Paolo (C76/76) and Swaddling (C-90/97)). It is then for the national courts to apply these criteria in practice.

As already stated in my letter of 11 November 2005, we have had some bilateral contacts with the Irish authorities. They informed us that, although the new legislation mentioned only one criterion (length of residence), in practice, a person's habitual residence in Ireland is assessed according to the 5 criteria established by the European Court fo Justice. We subsequently examined the administrative guidelines for the officers making desicions in Ireland on the application of the habitual residence condition, which refer indeed to the above-mentioned criteria of the Court of Justice.

As this question concerns a Community Regulation which is directly applicable in all Member States, the decisive factor for us is not the wording of the legislation, such as the Irish Social Welfare Act, but whether or not the practical application of this Habitual Residence Clause in Ireland is in conformity with Regulation 1408/71 and the relevant case law of the European Court of Justice. We have therefore sent your letter to the Irish authorities for their assessment of your complaints and will inform you of the result of our findings.

In any event, as it is for the national Courts to apply the Habitual Residence Clause, as interpreted by the Court of Justice, in practice, it is important not to miss any national deadlines of appeal, if you feel your rights under Community law are infringed by a decision of the Irish authorities in this field.

With regard to your question concernig the compatibility of the Habitual Residence Clause in Ireland with the "Standstill Clause", I would like to inform you that this clause only concerns the access of workers from the new Member States (except for Cyprus and Malta) to the Irish labour market. The Accession Treaty with these countries allows old Member States, by derogation from Regulation 1612/68 on the free movement of workers, to restrict the access of workers from the above-mentioned new Member States to their labour markets for a limited period of time. However, the Standstill Clause does not concern the Community provisions on social security, in particular Regulation 1408/71, which fully apply without any transitional periods also with regard to the new Member States as from the date of their accesion.

Yours sincerely,

*** ***********
Head of unit

Related Link: http://www.geocities.com/habitualresidencecondition
author by Magopublication date Mon Mar 20, 2006 16:58Report this post to the editors

for social rights and equality transit.

author by Magopublication date Fri May 05, 2006 17:49Report this post to the editors

Response from:
European Commission
Employment, Social Affairs and Equal Opportunities DG
Social protection and social integration
Free movement of workers and co-ordination of social security schemes
Brussels,
EMPL/E3 JT/D6311

Dear Mr. ****,

I refer to my letter of 16 February 2006, in which I informed you that I contacted the Irish authorities concerning your complaint about the new Irish Habitual Residence Clause. In the meantime, we have received their letter of reply.

In this letter, the Irish authorities confirm once again that they fully take account of the criteria laid down by the European Court of Justice in the di Paolo and Swaddling cases when determining the Habitual Residence of a person claiming certain social benefits in Ireland. Furthermore, they have also examined the cases of Ms ****** and of the other signatories of your letter of January 2006 who have indicated their Personal Public Service (PPS) Numbers.

As regards Ms ******, it seems that the independent Social Welfare Appeals Office, on 17 January 2005, awarded her entitlement to unemployment assistance with effect from the original date of her claim (1 September 2004). All the other seven persons, who signed your last letter with a PPS number, have submitted claims for Irish social benefits since May 2004; four of them became immediately entitled to these benefits. In one of the other three cases, the claimant had only come to Ireland to seek work and study for 7 months and could not provide sufficient evidence to support his claim that he was habitually resident in Ireland. In the second case, the person's original claim was refused, as he was only employed casually over a couple of months. This person, however, made a succesful claim for Unemployment Assistance one year later. In the third case, the person's claim to Unemployment Assistance for 3 days was refused, but he did not seek a review of the decision and did not appeal the case to the Social Welfare Appeals Office.

However, the Irish authorities stated in their reply that they would review the latter two cases for possible entitlement to insurance-based Unemployment Benefits in the light of the fact that social security contributions were paid prior to the persons concerned becoming unemployed.

In the view of the above, I cannot see any incompatibility of the practical application of the Habitual Residence Clause in Ireland with the relevant provisions of Regulation 1408/71, as interpreted by the European Court of Justice and we will therefore recommend the closure of this case. As already explained in my letter of 16 February 2006, the decisive factor for us is not the wording of the legislation, such as the Irish Social Welfare Act, but whether or not the practical application of this Habitual Residence Clause in Ireland is in conformity with Community law.

In any event, as it is for the national Courts to apply the Habitual Residence Clause, as interpreted by the Court of Justice, in practice, I would like to underline once again the importance of not to miss any national deadlines of appeal, if you feel your rights under Community law are infringed by a decision of the Irish authorities in this field.

However, in their letter of reply, the Irish authorities also offered to discuss any cases concerning the application of the Habitual Residence Clause with you. If you consider this helpful, please contact:

...

Yours sincerely,

*** ***********
Head of unit

author by Mago Merlinpublication date Tue Jul 18, 2006 15:32Report this post to the editors

Dear Mr. ***********,

Thank you for writing me back. That is basically what you have been doing and it is appreciated but I am not asking for any further replies unless there is something new that really answers my concerns.

I would also like to thank you for your interest in analysing particular cases, although that was not my intention but it was only to provide signatories of support to my complaints, which are concerns of a more general nature. Furthermore, I am not aware of their particular details and do not know what you are referring to.

However, as regards Ms. ******, whose particular case was presented as an example in my original letter of complaint, I cannot accept that she has been treated equally: had she been Irish or British in the same circumstances, she would have been awarded UA from the date of her claim. Being from “abroad” (Spanish) she was forced to live with no income for 5 months, wandering around Dublin forth and back trying to collect evidence that was no longer recorded in some places, fighting xenophobic attitudes (supported by the wording of the written rules, consented by the EU). So, certain migrant workers do lose out rights indeed, as opposed to your suggestions.
Please, only answer to this letter to make me understand that this kind of discrimination is fair to be allowed.

Nevertheless, if you are concerned about the practical application of the rules:
1. How come a British national has a direct entitlement in first arriving in Ireland and that is not the case for a French national? Only answer, please, if you have an argument contradicting my view that this does not conform with EU treaties and undermines principles of equality.
2. How come a returning Irish migrant has preferential treatment against a “foreign” national in the same case for the mere fact of belonging to Ireland? Please, only answer if EC really believes that this does not constitute a case of indirect discrimination despite the fact that Court of Justice ruled in favour of my opinion. (Brian Francis Collins v Secretary of State for Work and Pensions in the UK).

Yours truly,

****** ****.

author by Mago Merlinpublication date Wed Aug 30, 2006 13:24Report this post to the editors

Response from:
European Commission
Employment, Social Affairs and Equal Opportunities DG
Social Protection and Integration
Co-ordination of Social Security Schemes, Free Movement of Workers
Brussels,
EMPL/E3/JT/ek D(2006) 15941

Dear Mr. ****,

I refer to your further letter of July 2006, in which you question once again the compatibility of the practical application of the Irish habitual residence condition with Community law, in particular the equal treatment principle.

As already stated in my letters of 16 February and 28 March 2006, we have examined the administrative guidelines for the officers making decisions in Ireland on the application of the habitual residence condition and could not find any incompatibility of the practical application of this condition with the relevant provisions of Regulation 1408/71, as interpreted by the Court of Justice. In this context, I would also like to refer to the explanations on the application of the habitual residence condition provided by the Irish Department of Social and Family Affairs at its website (see http://www.welfare.ie/foi/habres.html) where it reads "A Deciding Officer should have due regard to EU law when deciding such cases. In general EU law takes precedence over National Law.". So far, we have not received any further complaints about the application of this condition in Ireland.

I would also remind you of the offer of the Irish authorities to discuss any cases concerning the application of the habitual residence condition with you (see my letter of 28 March 2006).

Yours sincerely,

*** ***********
Head of unit

Related Link: http://www.geocities.com/habitualresidencecondition
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