What is 'habitual residence'?
The purpose of the test is to stop someone claiming social benefits immediately when they enter the UK. The test applies to British citizens who lived abroad and are returning to live in the UK as well as to people who have never lived in the UK previously. The term ‘habitual residence’ is not defined. It is decided by looking at all the facts of the case but no single list can be drawn up to govern all cases. However, the DWP gives good general guidance (pdf) (paragraphs 073707-073766), as does the HB Guidance Manual part C4 (pdf) (paragraphs C4.80-93), the English Homelessness Code of Guidance (pdf) Annex 10 and the Scottish Code of Guidance on Homelessness Appendix 13E.
There are two elements to the phrase ‘habitual residence’
- 'residence': the person must be actually resident – mere intention to live here is not sufficient nor is mere presence
- 'habitual': there must be a degree of permanence about the residence – the person must have a settled intention to make his or her home here.
The test requires the claimant/applicant to be habitually resident in the 'Common Travel Area'. This means England, Wales, Scotland, Northern Ireland, the Republic of Ireland, the Isle of Man and the Channel Islands.
Gaining habitual residence
A person who leaves another country with the intention to settle in the UK does not become habitually resident immediately on arrival. Instead there are two main requirements (R(IS) 6/96):
- residence must be for an ‘appreciable period of time’
- there must be an intention to settle in the UK.
There is no fixed period that qualifies as an ‘appreciable period of time’. It will vary according the facts of the case taking account of the length, continuity and nature of the residence: (R(IS) 6/96). For example, is there any previous residence and what was it for (e.g. a holiday)? However, benefits case law suggests that the period lies between one and three months: CIS/4474/2003.
No one factor decides what is an appreciable period of time, the DWP and DCLG homelessness guidance sources above suggest that the main factors are:
- length and continuity of residence
- reasons for coming to the UK
- future intentions
- employment prospects, and
- centre of interest.
The guidance stresses that no one factor is more important than the others and that the appropriate weighting given to each will depend on the particular facts in the case.
A good example is Olokunboro v Croydon LBC (Croydon County Court 31/10/2002 - see Legal Action February 2003, page 37). The applicant had spent most of her life outside the UK, which was the country of her birth and citizenship. As a child, she did not decide where she lived, and so could not establish habitual residence then. She returned to the UK after a relationship breakdown and applied for accommodation. The court reversed the local authority’s decision that she was not habitually resident because the authority had placed undue emphasis on the fact that she had arrived with no accommodation and little money (that her residence was “not viable”) compared with the weight given to other factors like her citizenship and her ties to the UK. All factors should be given consideration and given appropriate weight. What is the appropriate weight will vary from case to case according to the particular facts. The failure to give appropriate weight to her very strong ties to the UK created a risk that some people would be excluded on the grounds of income alone.
How the test applies to different rights and benefits
Most applicants for local authority housing or welfare benefits have to pass the habitual residence test, although there are important exceptions. All of the rules on this page apply equally to housing applications and to claims for housing benefit and other passport benefits (e.g. income support, state pension credit, etc.) but with the following exceptions:
- entitlement to a passport benefit (income support, income-based jobseeker’s allowance, etc.) only provides exemption to the test for housing benefit; and
- for jobseeker’s allowance claims only, the claimant cannot be habitually resident during their first three months’ residence in the common travel area.
People subject to immigration control who have to pass the habitual residence test:
- people with indefinite leave to remain (for more on ILR, click here for England and Wales and here for Scotland)
- nationals of Macedonia or Turkey – other than those covered by one of the exemptions set out below
- EEA nationals not covered by the exemptions set out below (mainly those who are not engaged in the labour market, for example, students, people who are self-sufficient or who have acquired a right to reside as a result of five years' residence).
- UK nationals and people with right of abode (except the deportees and returning residents described below).
People who do not have to pass the habitual residence test:
- people with refugee status
- people granted forms of exceptional or discretionary leave to remain with no conditions about recourse to public funds
- people granted humanitarian protection
- EEA nationals and their family members (including Croatians) in self-employment, including periods when they are temporarily not working due to sickness
- EEA nationals and their family members (including Croatians in authorised work) engaged in employment
- EEA nationals and their family members (other than nationals of Croatia in their first year of authorised work in the UK) who are temporarily unable to work but who continue to be treated as workers
- EEA nationals (other than nationals of Croatia in their first year of authorised work in the UK) in certain circumstances who have retired from employment or self-employment in the UK due incapacity or old age
- Those British Citizens, Commonwealth Citizens with a right of abode, or people with settled status, who have arrived 'in the United Kingdom as a result of ... deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom'.
- Anyone, including British and Irish citizens who count as Swaddling returning residents (see below), who has exercised their EU Treaty rights to live and work in another member state and who is returning to live in the UK.
In the case of claims for housing benefit only, a person who is in receipt of any one of the following benefits:
- income support
- income-based jobseeker's allowance (but see above regarding entitlement during the first three months' of residence and also note that those claiming IBJSA solely on the basis of their right to reside as an EEA workseeker cannot get HB from 1st April 2014; people who claimed before that date have transitional protection which is lost if there is a break in the claim)
- income-related employment and support allowance, or
- state pension credit.
Losing habitual residence
Habitual residence can be lost in a single day, for example if someone leaves the UK with the intention to settle long-term in another country.
Temporary absence and returning residents
Once habitual residence has been established the following points apply about temporary absence:
- for a UK or EEA national it resumes immediately on return from work in another EEA member state (Swaddling v Chief Adjudication Officer); and
- in all cases it resumes immediately on return from a single short absence (e.g. a holiday).
In deciding whether habitual residence is regained after a longer absence or after a series of absences, a decision will depend on the circumstances in which the person left and returned to the UK; their intentions concerning the absence (was it intended to be temporary); and any continuing links with the UK.