Social Welfare And Pensions (No. 2) Act 2009

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Amendment to section 246 of Principal Act.

15.— Section 246 (as amended by the Social Welfare and Pensions Act 2008 ) of the Principal Act is amended by inserting the following subsections after subsection (4):

“(5) Notwithstanding subsections (1) to (4) and subject to subsection (9), a person who does not have a right to reside in the State shall not, for the purposes of this Act, be regarded as being habitually resident in the State.

(6) The following persons shall, for the purpose of subsection (5), be taken to have a right to reside in the State:

(a) an Irish citizen under the Irish Nationality and Citizenship Acts 1956 to 2004;

(b) a person who has a right to enter and reside in the State under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 ( S.I. No. 656 of 2006 ), the European Communities (Aliens) Regulations 1977 ( S.I. No. 393 of 1977 ) or the European Communities (Right of Residence for Non-Economically Active Persons) Regulations 1997 ( S.I. No. 57 of 1997 );

(c) a person in respect of whom a declaration within the meaning of section 17 of the Act of 1996 is in force;

(d) a member of the family of a refugee, or a dependent member of the family of a refugee, in respect of whom permission has been granted to enter and reside in the State under, and in accordance with, section 18(3)(a) or, as the case may be, section 18(4)(a) of the Act of 1996;

(e) a programme refugee within the meaning of section 24 of the Act of 1996;

(f) a person who has been granted permission to remain in the State under Regulation 4(4) of the Regulations of 2006;

(g) a person who has been granted permission to enter, and reside in, the State under Regulation 16(3)(a) or 16(4)(a) of the Regulations of 2006 by the Minister for Justice, Equality and Law Reform;

(h) a person whose presence in the State is in accordance with a permission to be in the State given by or on behalf of the Minister for Justice, Equality and Law Reform under and in accordance with section 4 or 5 of the Immigration Act 2004 .

(7) The following persons shall not be regarded as being habitually resident in the State for the purpose of this Act:

(a) a person who has made an application under section 8 of the Act of 1996 and where the Minister for Justice, Equality and Law Reform has not yet made a decision as to whether a declaration under section 17 of the Act of 1996 will be given in respect of such application;

(b) a person in respect of whom an application for subsidiary protection has been made under Regulation 4 of the Regulations of 2006 and where a determination under that Regulation has not yet been made in respect of such application;

(c) a person who has been notified under section 3 (3)(a) of the Immigration Act 1999 that the Minister for Justice, Equality and Law Reform proposes to make a deportation order, whether or not that person has made representations under section 3(3)(b) of that Act, and where the Minister for Justice, Equality and Law Reform has not yet made a decision as to whether a deportation order is to be made in respect of such person;

(d) a person who has made an application under section 8 of the Act of 1996 which has been refused by the Minister for Justice, Equality and Law Reform;

(e) a person in respect of whom an application for subsidiary protection has been made under Regulation 4 of the Regulations of 2006 and a determination has been made that the person is not eligible for subsidiary protection under the Regulations of 2006;

(f) a person in respect of whom a deportation order has been made under section 3 (1) of the Immigration Act 1999 .

(8) For the purpose of this Act, where a person—

(a) is given a declaration that he or she is a refugee under section 17 of the Act of 1996,

(b) is granted permission to enter and remain in the State under section 18(3)(a) or 18(4)(a) of the Act of 1996,

(c) is granted permission to remain in the State under Regulation 4(4) of the Regulations of 2006,

(d) is granted permission to enter and reside in the State under Regulation 16(3)(a) or 16(4)(a) of the Regulations of 2006, or

(e) is granted permission to remain in the State under and in accordance with the Immigration Act 1999 or the Immigration Act 2004 ,

he or she shall not be regarded as being habitually resident in the State for any period before the date on which the declaration referred to in paragraph (a) was given or the permission referred to in paragraph (b), (c), (d) or (e), was granted.

(9) Notwithstanding that a person has, or is taken to have in accordance with subsection (6), a right to reside in the State the determination as to whether that person is habitually resident in the State shall be made in accordance with subsections (1) and (4).

(10) In this section—

‘Act of 1996’ means the Refugee Act 1996 ;

‘Regulations of 2006’ means the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006 ).”.