Pandemic Unemployment Payment Q&A - Should I stay or should I go now? 

Heather Humphreys may have done a U-turn on holiday entitlements for those receiving the pandemic unemployment payment, but this issue looks set to rumble on. Here, Neil Michael attempts to answer some of the pressing questions surrounding the PUP
Pandemic Unemployment Payment Q&A - Should I stay or should I go now? 
Passengers at Terminal 1 of Dublin Airport this afternoon, after it was announced that traffic at the Airport has not increased since the Government published its 'greenlist' travel destinations. Picture: Colin Keegan/Collins Dublin

The Social Welfare (Covid-19) (Amendment) Bill 2020 — or pandemic unemployment payment — what is it?

Previously, the Department of Social Protection relied on Section 202 of the Social Welfare Consolidation Act for the legal basis for this emergency payment.

Essentially, the pandemic unemployment payment (PUP) was paid as an urgent payment under the legislation governing the Supplementary Welfare Allowance scheme.

While this was appropriate at the time because it was an urgent response, the extension of the period for which the PUP is being made means that it is appropriate now to place it on a discrete statutory footing with the Social Welfare (Covid-19) (Amendment) Bill 2020.

Doing so will also mean that the department can make arrangements to attribute full social insurance contributions to recipients of the payment.

So what’s different now?

On the face of it, not a lot. The main thing is that you need to be genuinely seeking work to get the PUP payment.

Can I still get a PUP payment if I go on holiday?

Yes, as long as you are travelling to countries on the so-called 'green list'. The minister has said the new legislation being introduced to put the PUP on a statutory footing will mean PUPs will come into line with jobseeker's allowance, so travelling to green-list countries will be allowed.

Will I get my money back if I went on holiday before and had my PUP stopped?

Social protection minister Heather Humphreys has told the Dáil a review is under way of all cases (around 200) of people who had their payments stopped but who had not been aware of restrictions that she says were already in place. These reviews relate to people who did not leave the country permanently, but returned after a few weeks.

She has said she will sign a regulation that will allow people receiving the PUP and jobseeker's allowance to travel to green-list countries without having their payments halted.

However, if people want to travel to a non-green list country, it must be for essential reasons such as a bereavement or for health reasons and they must inform their Intreo office beforehand.

Now that the minister has, in effect, done something of a u-turn on holiday entitlements, is that the end of the matter?

No. Far from it. The lawyers at the Free Legal Advice Centre (FLAC) believe there still needs to be clarity in relation to jobseeker's allowance and whether or not those who are self-isolating, for whatever reason, may have their payment cut, as the departmental circular indicates that those who are self-isolating may not be genuinely seeking employment.

FLAC managing solicitor Sinead Lucey says FLAC’s other concerns are the introduction of the requirement to be genuinely seeking work for those on the Covid PUP.

This is, she believes, “inconsistent with the idea that the payment was intended for people who had been temporarily laid off”. It may also disproportionately affect those with no childcare during the pandemic, as well as small business owners.

So who is carrying out checks at ports and airports?

Department of Social Protection inspectors, backed mostly by uniformed gardaí.

What powers do they have?

The legal basis for inspectors approaching people at Dublin Airport is Section 250 (16) of the Social Welfare Consolidation Act 2005, as amended by Section 17 of the Social Welfare and Pensions Act 2012. 

This states that for the purposes of ensuring compliance, a social welfare inspector who "has reasonable grounds" to believe there has been a contravention of the Social Welfare and Pensions Act 2012 can question any passenger about "any matter that concerns compliance" with the act. 

They can also request any person to produce "any documents or other information as that inspector may reasonably require for the purposes of establishing the identity, and, where appropriate, the habitual residence, of that person".

Are airlines sharing personal details on passengers?

They do, and so does the DAA, but in exactly what context is not clear. However, it is clear now that very little actual information appears to have been shared between the various State agencies in the context of the PUP holiday-entitlement fiasco. 

That is because all the inspectors need is a passenger's name and date of birth to ascertain if they are in receipt of PUPs.

In a more general context, the DAA says on its website that data is provided by them to regulatory bodies and law enforcement agencies “to meet statutory or regulatory obligations”.

Agencies the DAA says it “may be obliged to share information with” include gardaí, Irish Naturalisation and Immigration Service (INIS), and Revenue’s tax and customs service.

Aer Lingus says it shares “individual passport information and Passenger Name Record (PNR) data”. It says it does this where it has to comply with its regulatory obligations and regulations as required by the EU API and PNR directive.

The EU Directive 2016/681, which the Department of Justice says sets down rules on the use of PNR data for the “prevention, detection, investigation, and prosecution of terrorist offences and serious crime” became effective on May 25, 2018.

It requires airlines to provide advance passenger name record (PNR) information to the authorities on all non-EU flights entering or leaving the State.

Airlines are required to routinely provide specified PNR data in respect of non-EU flights 24 to 48 hours before scheduled departure time and immediately after flight closure. The department also says they may also be required to provide PNR data at “other times”.

This is, it says, on a “case-by-case basis” and is where access to that data is required in order to respond to “a specific and actual threat related to terrorist offences” or “serious crime”.

All this begs the question — do customers sign consent for this information to be shared as part of their overall agreement to fly with the airline?

The easy answer to that question is, according to Aer Lingus, “Yes”. Consent is, they say, provided per Aer Lingus’ general conditions of carriage.

What happens if I refuse to hand over my details?

Garda officers conducting duties alongside welfare inspectors are working in their capacity as immigration officers by the Minister for Justice & Equality in the exercise of the powers conferred on them by Section 3(1) of the Immigration Act 2004.

This gives them the power to “detain and examine any person arriving at or leaving any port in the State who is reasonably believed to be a non-national”.

It also gives them the power to require people to produce a passport “or another equivalent identity document”.

Gardaí are also acting under the provisions of the Garda Síochána Act 2005 which states, among other things, in Section 7  their role is to “protect the security of the State”, “prevent crime”, and “detecting and investigating crime”.

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