S.I. No. 243/1993 - Social Welfare (Agreement With The United States of America on Social Security) Order, 1993.

S.I. No. 243 of 1993.

SOCIAL WELFARE (AGREEMENT WITH THE UNITED STATES OF AMERICA ON SOCIAL SECURITY) ORDER, 1993.

WHEREAS the arrangements in respect of matters relating to social security set out in the Agreement in the Schedule to this Order (hereinafter called the "Agreement") were made by the Government of Ireland with the Government of the United States of America;

AND WHEREAS it is provided in Article 21 of the Agreement that the Agreement will be subject to compliance with all statutory and constitutional requirements for its entry into force;

AND WHEREAS it is provided in Article 21 of the Agreement that the Agreement will come into force on the first day of the third month following the month in which each Party to the Agreement shall have received from the other Party written notifications that it has complied with all statutory and constitutional requirements for entry into force of the Agreement;

AND WHEREAS the aforesaid written notifications were exchanged in Dublin on 24 June, 1993.

NOW THEREFORE the Minister for Social Welfare, in exercise of the powers conferred on him by sections 3 and 307 of the Social Welfare (Consolidation) Act, 1981 (No. 1 of 1981 ), hereby makes the following Order:—

1. This Order may be cited as the Social Welfare (Agreement with The United States of America on Social Security) Order, 1993.

2. The Agreement shall come into force on the 1st day of September, 1993.

3. On and from the 1st day of September, 1993 the Social Welfare Acts 1981 to 1993 and the regulations made under those Acts insofar as they relate to old age (contributory) pension, retirement pension, invalidity pension, widow's (contributory) pension, orphan's (contributory) allowance, death grant and the liability of a person employed outside the State to the payment of employment and self-employment contributions shall be modified to the extent necessary to take account of and give effect to the provisions of the Agreement.

GIVEN under the Official Seal of the Minister for Social Welfare this 26th day of August, 1993.

MICHAEL WOODS,

Minister for Social Welfare.

AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND IRELAND ON SOCIAL SECURITY

The Government of the United States of America and the Government of Ireland, being desirous of regulating the relationship between their two countries in the field of Social Security, have agreed as follows;

PART I

GENERAL PROVISIONS

Article 1

1. For the purpose of this Agreement:

( a ) "National" means,

as regards the United States, a national of the United States as defined in Section 101, Immigration and Nationality Act, as amended, and

as regards Ireland, a citizen of Ireland;

( b ) "Laws" means the laws and regulations specified in Article 2;

( c ) "Laws on compulsory coverage" means,

as regards United States laws, the provisions relating to covered employment and self-employment, and

as regards Irish laws, the provision relating to insurable employment and insurable self-employment—

( d ) "Competent Authority" means,

as regards the United States, the Secretary of Health and Human Services, and

as regards Ireland, the Minister for Social Welfare;

( e ) "Agency" means,

as regards the United States, the Social Security Administration, and

as regards Ireland, the Department of Social Welfare;

( f ) "Period of coverage" means a period of payment of contributions or a period of earnings from employment or self-employment, as defined or recognized as a period of coverage by the laws under which such period has been completed, or any similar period insofar as it is recognized by such laws as equivalent to a period of coverage;

( g ) "Benefit" means any benefit provided for in the laws specified in Article 2 of this Agreement.

2. Any other expression used in this Agreement shall have the meaning assigned to it in the applicable laws.

Article 2

1. For the purpose of this Agreement, the applicable laws are:

( a ) As regards the United States, the laws governing the Federal old-age, survivors, and disability insurance program:

—Title II of the Social Security Act and regulations pertaining thereto, except sections 226, 226A and 228 of that title and regulations pertaining to those sections,

—Chapters 2 and 21 of the Internal Revenue Code of 1986 and regulations pertaining to those chapters;

( b ) As regards Ireland,

(i) the Social Welfare Acts 1981 to 1992 and regulations made under those Acts as they relate to:

( a ) old age (contributory) pension;

( b ) retirement pension;

( c ) widows (contributory) pension;

( d ) invalidity pension;

( e ) orphans (contributory) allowance;

( f ) death grant; and

( g ) the liability for payment of employment and self-employment contributions; and

(ii) with respect to Part II only, section 15 of the Youth Employment Agency Act, 1981 and section 25 of the Labour Services Act, 1987 insofar as such sections relate to the liability of a person for the Employment and Training Levy and section 4 of the Health Contributions Act, 1979 .

2. Unless otherwise provided, the laws to which this Agreement applies shall not include the Regulations on Social Security of the institutions of the European Communities or any treaties or other international agreements concluded between a Contracting State and a third State, or laws or regulations promulgated for their specific implementation.

3. This Agreement shall also apply to future laws amending or consolidating the laws specified in paragraph 1 of this Article.

Article 3

This Agreement shall apply to any person who is or who has been subject to the laws of one or both of the contracting States and to the dependants and survivors of such a person within the meaning of the applicable laws of either State.

Article 4

1. A person who is or has been subject to the laws of one Contracting State and who resides in the other Contracting State, as well as the person's dependants or survivors who reside in the other Contracting State, shall receive equal treatment with nationals of the other Contracting State in the application of the laws of the other Contracting State regarding entitlement to or payment of benefits.

2. Paragraph 1 shall also apply to nationals of a Contracting State residing in the other Contracting State who have never been subject to the laws of the first Contracting State and to the dependants and survivors of such persons.

3. Unless otherwise provided in this Agreement, any provision of the laws of a Contracting State which restricts entitlement to or payment of benefits solely because the person resides outside or is absent from that Contracting State shall not be applicable to the persons who reside in the other contracting State.

PART II

APPLICABLE LAWS

Article 5

1. Except as otherwise provided in this article, a person employed in one of the Contracting States shall, with respect to that employment, be subject to the laws of only that Contracting State.

2. Where a person who is normally employed in one Contracting State by an employer in that State is sent by that employer to the other contracting State for a temporary period, the person shall be subject to the laws of only the first Contracting State as if he were employed in the first Contracting State, provided that the period of employment in the other Contracting State is not expected to exceed five years or such longer period as may be agreed upon by the Competent Authorities of both Contracting States in a particular case. For the purposes of applying the preceding sentence, an employer and an affiliated company of the employer (as defined under the laws of the Contracting State from which the person was sent) shall be considered one and the same, provided that the employment in the other Contracting State would have been subject to the laws on compulsory coverage of the Contracting State from which the person was sent in the absence of this Agreement.

3. Paragraph 2 shall apply likewise to a person who is sent to work on an artificial island, installation, or structure situated on the continental shelf, determined in accordance with internationl law, of a Contracting State as though that artificial island, installation, or structure were situated in that Contracting State.

4. Paragraph 2 shall apply where a person who has been sent by his employer from a Contracting State to a third State is subsequently sent by that employer from the third State to the other Contracting State.

5. A person who would otherwise be subject to the laws of both Contracting States with respect to self-employment shall be subject only to the laws of the contracting State in which he is ordinarily resident.

6. This Agreement shall not affect the provisions of the Vienna Convention on Diplomatic Relations of April 18, 1961, or of the Vienna Convention on Consular Relations of April 24,1963.

7. Nationals of one of the Contracting States who are employed by the Government of that contracting State in the other Contracting State but who are not exempt from the laws of the other Contracting State by virtue of the Conventions mentioned in paragraph 6 shall be subject to the laws of only the first contracting State. For the purposes of this paragraph, employment by the United States Government includes employment by an instrumentality thereof, and employment by the Irish Government includes employment which would, under United States laws, be regarded as employment by an instrumentality of the Irish Government.

8. Where the same activity is considered to be self-employment under the laws of one Contracting State and employment under the laws of the other Contracting State, that activity shall be treated according to the provisions of this Article concerning self-employment if the person is ordinarily resident in the first Contracting State and according to the provisions of this Article concerning employment in any other case.

9. The Competent Authorities of the two Contracting States may agree to grant an exception to the provisions of this Article with respect to particular persons or categories of persons, provided that any affected person shall be subject to the laws of one of the Contracting States.

PART III

PROVISIONS ON BENEFITS

Article 6

The following provisions shall apply to the United States:

1. Where a person has completed at least six quarters of coverage under United States laws, but does not have sufficient periods of coverage to satisfy the requirements for entitlements to benefits under United States laws, the agency of the United States shall take into account, for the purpose of establishing entitlements to benefits under this Article, periods of coverage completed under Irish laws which do not coincide with periods of coverage already credited under United States laws.

2. In applying paragraph 1, the agency of the United States shall only take into account periods of coverage which are used for benefit entitlement purposes under Irish laws.

3. In determining eligibility for benefit under paragraph 1 of this Article, the agency of the United States shall credit one quarter of coverage for every thirteen contribution weeks of coverage, or fraction thereof, certified by the agency of Ireland; however, no quarter of coverage shall be credited for any calendar quarter already credited as a quarter of coverage under United States laws. The total number of quarters of coverage to be credited for a year shall not exceed four.

4. Where entitlement to a benefit under United States laws is established according to the provisions of paragraph 1, the agency of the United States shall compute a pro rata Primary Insurance Amount in accordance with United States laws based on (a) the person's average earnings credited exclusively under United States laws and (b) the ratio of the duration of the person's periods of coverage completed under United States laws to the duration of a coverage lifetime as determined in accordance with United States laws. Benefits payable under United States laws shall be based on the pro rata Primary Insurance Amount.

5. Entitlement to a benefit from the United States which results from paragraph 1 shall terminate with the acquisition of sufficient periods of coverage under United States laws to establish entitlement to an equal or higher benefit without the need to invoke the provisions of paragraph 1 of this Article.

Article 7

The following provisions shall apply to Ireland:

1. Where a person has completed at least fifty-two contribution weeks of coverage under Irish laws but does not have sufficient periods of coverage to satisfy the contribution conditions for entitlement to benefits under these laws, the agency of Ireland shall, subject to paragraph 4, take into account for the purpose of establishing entitlement to benefit under this Article periods of coverage completed under United States laws and shall totalise such periods with periods of coverage completed under Irish laws. The agency of Ireland shall determine entitlement ot benefit on the basis of the totalised periods in accordance with the relevant statutory contribution conditions provided for under Irish laws.

2. The agency of Ireland shall calculate the amounts of Irish benefit payable, other than death grant and orphans contributory allowance, in accordance with the following formula:

( a ) the amount of the theoretical benefit which would be payable if all the periods of coverage completed under the laws of both Contracting States had been completed under its own laws shall be calculated; and

( b ) the proportion of such theoretical benefit which bears the same relation to the whole as the total of the periods of coverage completed by such person under Irish laws bears to the total of all periods of coverage which the person has completed under the laws of both contracting States shall then be calculated.

The proportionate amount thus calculated shall be the rate of benefit actually payable to that person by the agency of Ireland.

3. In the case of death grant and orphans (contributory) pension, the amount of benefit payable shall be determined in accordance with the relevant statutory contribution conditions under Irish laws.

4. For the purposes of the application of paragraphs 1 and 2 of this Article, where a period of coverage completed under Irish laws coincides with a period of coverage under United States laws, only the period of coverage under Irish laws shall be taken into account.

5. For the purposes of determining the eligibility of a person for a benefit under paragraph 1 of this Article, each quarter of coverage completed by the person under United States laws in any contribution year shall be regarded as being the equivalent of thirteen contribution weeks of coverage. The total number of contribution weeks of coverage in any one contribution year shall not exceed fifty-two.

6. A period of continuous incapacity for work in accordance with Irish laws which occurs while the person is resident in the United States shall be deemed to be a continuous period of incapacity for work under Irish laws for the purpose of determining if a person is permanently incapable of work.

PART IV

MISCELLANEOUS PROVISIONS

Article 8

The Competent Authorities of the two Contracting States shall:

( a ) Make all necessary administrative arrangements for the implementation of this Agreement;

( b ) Communicate to each other information concerning the measures taken for the application of this Agreement; and

( c ) Communicate to each other, as soon as possible, information concerning all changes in their respective laws which may affect the application of this agreement.

Article 9

The Competent Authorities and the agencies of the Contracting States, within the scope of their respective authorities, shall assist each other in implementing this Agreement. This assistance shall be free of charge, subject to exceptions to be agreed upon in an administrative arrangement.

Article 10

1. Where the laws of a contracting State provide that any document which is submitted to the Competent Authority or agency of that Contracting State shall be exempted, wholly or partly, from fees or charges, including consular and administrative fees, the exemption shall also apply to corresponding documents which are submitted to the Competent Authority or agency of the other Contracting State in the application of this Agreement.

2. Documents and certificates which are presented for purposes of this Agreement shall be exempted from requirements for authentication by diplomatic or consular authorities.

3. Copies of documents which are certified as true and exact copies by the agency of one Contracting State shall be accepted as true and exact copies by the agency of the other Contracting State, without further certification. The agency of each contracting State shall be the final judge of the probative value of the evidence submitted to it from whatever source.

Article 11

The Competent Authorities and agencies of the Contracting States may correspond directly with each other and with any person wherever the person may reside whenever it is necessary for the administration of this Agreement.

Article 12

1. A written application for benefits filed with the Agency of one contracting State shall protect the rights of the claimants under the laws of the other Contracting State if the applicant requests that it be considered an application under the laws of the other Contracting State.

2. If an applicant has filed a written application for benefits with the agency of one Contracting State and has not explicitly requested that the application be restricted to benefits under the laws of that Contracting State, the application shall also protect the rights of the claimants under the laws of the other Contracting State if the applicant provides information at the time of filing indicating that the person on whose record benefits are claimed has completed periods of coverage under the laws of the other Contracting State.

3. The provisions of Part III shall apply only to an application for benefits which is filed on or after the date this Agreement enters into force.

Article 13

1. A written appeal against a decision made by the agency of one Contracting State may be validly filed with the agency of either Contracting State. The appeal shall be dealt with according to the procedure and laws of the Contracting State whose decision is being appealed.

2. Any claim, notice or written appeal which, under the laws of one Contracting State, must have been filed within a prescribed period with the agency of that Contracting State, but which is instead filed within the same period with the agency of the other Contracting State, shall be considered to have been filed on time.

Article 14

In any case to which the provisions of Article 12 or Article 13 apply, the agency to which the claim, notice or written appeal has been submitted shall indicate the date of receipt on the document and transmit it without delay to the agency of the other Contracting State.

Article 15

Unless otherwise required by the national statutes of a Contracting State, information about an individual which is transmitted in accordance with this Agreement to that Contracting State by the other Contracting State shall be confidential and used exclusively for purposes of implementing this Agreement. Such information received by a Contracting State shall be governed by the national statues of that Contracting State for the protection of privacy and confidentiality of personal data.

Article 16

1. Payments under this Agreement may be made in the currency of the Contracting State making the payments.

2. In case provisions designed to restrict the exchange or exportation of currencies are introduced by either Contracting State, the Governments of both Contracting States shall immediately take measures necessary to ensure the transfer of sums owed by either Contracting State under this Agreement.

Article 17

Disagreements between the two Contracting States regarding the interpretation or application of this Agreement shall, as far as possible, be resolved through agreement of the Competent Authorities.

Article 18

This Agreement may be amended in the future by supplementary agreement which, from their entry into force, shall be considered an integral part of this Agreement. Such agreements may be given retroactive effect if they so specify.

PART V

TRANSITIONAL AND FINAL PROVISIONS

Article 19

1. This Agreement shall not establish any claim to payment of a benefit for any period before the date of the entry into force of the Agreement, or to a lump-sum death benefit or death grant if the person died before the date of entry into force of the Agreement.

2. In determining the right to and the amount of benefits under this Agreement, periods of coverage and other events which occurred before the date of entry into force of this Agreement shall be taken into account, except that neither Contracting State shall take into account periods of coverage which occurred prior to the earliest date for which periods of coverage may be taken into account under its laws.

3. In applying paragraph 2 of the Article 5 in the case of persons who were sent to a Contracting State prior to the date of entry into force of this Agreement, the period of employment referred to in that paragraph shall be considered to begin on that date.

4. The application of this Agreement shall not result in any reduction in the amount of a benefit to which entitlement was established prior to its entry into force.

Article 20

1. This Agreement shall remain in force and effect until the expiration of one calendar year following the year in which written notice of its termination is given by one of the Contracting States to the other Contracting State.

2. If this Agreement is terminated, rights regarding entitlement to or payment of benefits acquired under it shall be retained. The Contracting States shall make arrangements dealing with rights in the process of being acquired.

Article 21

This Agreement shall enter into force on the first day of the third month following the month in which each Government shall have received from the other Government written notification that it has complied with all statutory and constitutional requirements for the entry into force of this Agreement.

IN WITNESS WHEREOF, the undersigned, being duly authorised thereto, have signed the present Agreement.

DONE in duplicate at Washington on April 14, 1992.

FOR THE GOVERNMENT OF THE UNITED

STATES OF AMERICA:

Louis N. Sullivan, M.D.

FOR THE GOVERNMENT OF IRELAND:

Charlie McCreevey.

ADMINISTRATIVE ARRANGEMENT FOR THE IMPLEMENTATION OF THE AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND IRELAND ON SOCIAL SECURITY

The Government of the United States of America and the Government of Ireland, in conformity with Article 8, paragraph (a), of the Agreement between the United States of America and Ireland on Social Security of this date, hereinafter referred to as the "Agreement", have agreed as follows:

CHAPTER I

GENERAL PROVISIONS

Article 1

The terms used in this Administrative Arrangement shall have the same meaning as in the Agreement.

Article 2

The agencies of both Contracting States shall agree upon joint procedures and forms necessary for the implementation of the Agreement and this Administrative Arrangement.

CHAPTER II

PROVISIONS ON COVERAGE

Article 3

1. Where the laws of a Contracting State are applicable in accordance with any of the provisions of Article 5 of the Agreement, the agency of that Contracting State, upon request of the employer or self-employed person, shall issue a certificate stating that the employee or self-employed person is subject to those laws and indicating the duration for which the certificate shall be valid. This certificate shall be proof that the named worker is exempt from the laws on compulsory coverage of the other Contracting State.

2. The certificate referred to in paragraph 1 shall be issued

( a ) in the United States: by the Social Security Administration;

( b ) in Ireland: by the Scope Section of the Department of Social Welfare.

3. The agency of a Contracting Stage which issues a certificate referred to in paragraph 1 shall furnish a copy of the certificate to the agency of the other Contracting State as needed by the latter agency.

CHAPTER III

PROVISIONS ON BENEFITS

Article 4

1. The agency of the Contracting State with which an application for benefits is first filed in accordance with Article 12 of the Agreement shall provide the agency of the other Contracting State with such evidence and other information as may be required to complete action on the claim.

2. The agency of a Contracting State which receives an application that was first filed with the agency of the other Contracting State shall without delay provide the agency of that Contracting State with such evidence and other available information as may be required for it to complete action on the claim.

3. The agency of the Contracting State with which an application for benefits has been filed shall verify the information pertaining to the applicant and his family members. The types of information to be verified shall be agreed upon by the agencies of both Contracting States.

CHAPTER IV

MISCELLANEOUS PROVISIONS

Article 5

In accordance with measures to be agreed upon pursuant to Article 2 of this Administrative Arrangement, the agency of one Contracting State shall, upon request of the agency of the other Contracting State, furnish available information relating to the claim of any specified individual for the purpose of administering the Agreement.

Article 6

The agencies of the two Contracting States shall exchange statistics on the number of certificates issued under Article 3 of this Administrative Arrangement and on the payments made to beneficiaries under the Agreement. These statistics shall be furnished annually in a form to be agreed upon.

Article 7

1. Where administrative assistance is requested under Article 9 of the Agreement, expenses other than regular personnel and operating costs of the agency providing the assistance shall be reimbursed, except as may be agreed to by the competent Authorities or agencies of the Contracting States.

2. Upon request, the agency of either Contracting State shall furnish without cost to the agency of the other Contracting State any medical information and documentation in its possession relevant to the disability of the claimant or beneficiary.

3. The Agency of one Contracting State shall reimburse amounts owed under paragraph 1 of this Article upon presentation of a statement of expenses by the agency of the other Contracting State.

Article 8

This Administrative Arrangement shall enter into force on the date of entry into force of the Agreement and shall have the same period of validity.

DONE in duplicate at Washington on April 14, 1992.

FOR THE GOVERNMENT OF THE UNITED

STATES OF AMERICA:

Louis N. Sullivan, M.D.

FOR THE GOVERNMENT OF IRELAND:

Charlie McCreevey.

EXPLANATORY NOTE.

This Order gives effect to the Bilateral Agreement on Social Security made between Ireland and the United States of America which comes into effect from 1 September 1993. The Order provides that the Social Welfare Acts and relevant regulations will be modified to take account of the provisions of the Agreement.

The primary purpose of the Agreement is to allow social insurance contributions paid in Ireland to assist a person to qualify for certain benefits in the United States of America and to allow social insurance contributions paid in the United States of America to count towards satisfying the contribution conditions for certain Irish benefits. In the case of Ireland the agreement covers Old Age (Contributory) Pension, Retirement Pension, Invalidity Pension, Widow's and Orphan's (Contributory) Pensions and Death Grant.

The Agreement also deals with the liability, for Irish social insurance contributions (PRSI), of "detached" workers who are seconded to work in the United States of America for temporary periods of up to 5 years by an employer who has his business in Ireland. Such workers will continue to be attached to the Irish social insurance system for the period of such temporary absences.