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 who cannot be habitually resident (JSA only)
For jobseeker’s allowance claims only, a claimant cannot be habitually resident during their first three months' residence in the common travel area (and so is thereby disqualified from JSA). This rule applies regardless of nationality or immigration status (e.g. returning UK nationals and EEA nationals are affected). But the rule does not strictly apply to any other claims or applications as such (i.e. not to HB/CTR, any other passport benefits or to housing applications).
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 evacuees and deportees 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
- 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'.
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.
What is 'habitual residence'?
The purpose of the test is to stop someone claiming social benefits immediately when they enter the UK (for example, if they have a right of abode as British Citizen but have never lived here or have not lived here for a long time).
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 C4.87-106).
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 - it implies a settled state in which the person is making their home here.
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. Although no one factor decides what is an appreciable period of time, DWP guidance (see link above, paragraphs C4.85-86) suggests that the main factors likely to be relevant are:
- length and continuity of residence
- reasons for coming to the UK
- future intentions
- employment prospects, and
- centre of interest.
The guidance explains these in more detail and provides helpful examples of each.
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.