246.—F1386[(1) A requirement, in any of the provisions specified in subsection (3), for a person to be habitually resident in the State means that—

(a) the person must be habitually resident in the State at the date of the making of the application, and the person must remain habitually resident in the State after the making of that application in order for any entitlement to subsist,

(b) the person is a worker or a self-employed person, residing in the State pursuant to article 7 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004², from—

(i) a Member State, or

(ii) a member state of the European Economic Area,

(c) the person is a family member of a person referred to in paragraph (b),

(d) where a person referred to in paragraph (b) ceases to be such a worker or such a self-employed person, the person must be habitually resident in the State immediately after the date of such cessation, and must remain habitually resident in the State in order for any entitlement to subsist, or

(e) where a person referred to in paragraph (b) ceases to be such a worker or such a self-employed person, a family member of such a person must be habitually resident in the State immediately after the date of such cessation, and the family member must remain habitually resident in the State in order for any entitlement to subsist.]

[2004 (MP) s17 & Sch 1]

(2) F1387[…]

[2004 (MP) s17 & Sch 1]

(3) The provisions of this Act referred to in subsection (1) are sections 141(9), F1388[153(c)], F1389[161A(d), ] 163(3), 168(5), 173(6), F1390[180(2)], F1391[186A(2),] F1392[186D(1)], 192, F1393[210(9), 220(3) and 238B(5).]

F1394[(4) F1395[A] deciding officer or F1396[a designated person], when determining whether a person is habitually F1395[resident in the State for the purposes of this Act], shall take into consideration all the circumstances of the case including, in particular, the following:

(a) the length and continuity of residence in the State or in any other particular country;

(b) the length and purpose of any absence from the State;

(c) the nature and pattern of the person’s employment;

(d) the person’s main centre of interest; and

(e) the future intentions of the person concerned as they appear from all the circumstances.]

F1397[(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.]

F1397[(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;

F1398[(b) a person who has the right under the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) to enter and reside in the State or is deemed under those Regulations to be lawfully resident in the State;]

F1399[(c) a person in relation to whom a refugee declaration within the meaning of the Act of 2015 is in force, or is deemed under that Act to be in force;]

F1400[(ca) a person in relation to whom a subsidiary protection declaration within the meaning of the Act of 2015 is in force, or is deemed under that Act to be in force;]

F1401[(d) a person who has been given, or is deemed under the Act of 2015 to have been given, a permission to enter and reside in the State under section 56 of that Act, where the permission concerned is in force;]

F1402[(da) a person who has been given, or is deemed under the Act of 2015 to have been given, a permission to reside in the State under section 57 of that Act, where the permission concerned is in force;]

F1403[(e) a person who is a programme refugee within the meaning of section 59 of the Act of 2015 or is deemed to be a programme refugee under subsection (4) of that section;]

F1404[(f) a person who has been given, or is deemed under the Act of 2015 to have been given, a permission to reside in the State under section 54 of that Act, where the permission concerned is in force;]

(g) F1405[…]

(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 F1406[the Immigration Act 2004;]

F1407[(i) a person who has been given a permission to reside in the State under section 60(6) of the Act of 2015, where the permission concerned is in force.]]

F1397[(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;

F1408[(aa) an applicant within the meaning of section 16 of the Act of 2015, or a person deemed to have made an application under that Act;]

F1409[(b) an applicant within the meaning of the Regulations of 2013, or any other person awaiting a grant of permission to reside in the State under Regulation 23, 25 or 26 of the Regulations of 2013;]

(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;

F1410[(da) a person who has made, or is deemed under the Act of 2015 to have made, an application under section 15 of that Act which has been refused by the Minister for Justice and Equality;]

F1411[(e) a person—

(i) whose application for subsidiary protection under Regulation 4 or 16 of the Regulations of 2006 has been refused, or whose permission under Regulation 4 or 16 of the Regulations of 2006 has been revoked,

(ii) whose application under Regulation 3 of the Regulations of 2013 for a subsidiary protection declaration has been refused, or whose subsidiary protection declaration has been revoked, under the Regulations of 2013, or

(iii) whose application under Regulation 25 or 26 of the Regulations of 2013 has been refused, or whose permission under Regulation 25 or 26 of the Regulations of 2013 has been revoked;]

F1412[(f) a person in relation to whom a deportation order has been made, or has been deemed under section 51 of the Act of 2015 to have been made, under section 3(1) of the Immigration Act 1999.]]

F1397[(8) For the purpose of this Act, where a person—

F1413[(a) is given, or deemed under the Act of 2015 to be given, a refugee declaration under that Act,]

F1414[(b) is given, or deemed under the Act of 2015 to be given, a permission to enter and reside in the State under section 56 of that Act,]

F1415[(ba) is given, or deemed under the Act of 2015 to be given, a permission to reside in the State under section 57 of that Act,]

F1416[(c) is given, or deemed under the Act of 2015 to be given, a subsidiary protection declaration under that Act, or]

(d) F1417[…]

(e) is granted permission to remain in the State under and in accordance with F1418[…] 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 F1419[declaration or permission concerned was given or granted as the case may be and, in the case of a declaration or permission deemed to be given, for any period before the date on which the declaration or permission concerned was originally given.]]

F1397[(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).]

F1397[(10) In this section—

‘Act of 1996’ means the Refugee Act 1996;

F1420[ ‘Act of 2015’ means the International Protection Act 2015;]

‘Regulations of 2006’ means the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of F1421[2006);]

F1422[‘Regulations of 2013’ means the European Union (Subsidiary Protection) Regulations 2013 (S.I. No. 426 of 2013).]]