What is the habitual residence test?

What is the test for?

The test is designed to stop someone who has a right to enter the UK from claiming social benefits immediately after their arrival. Most applicants to the council/Housing Executive for housing or welfare benefits must pass the habitual residence test, although there are important exceptions. The rules on this page apply equally to housing applications and to claims for universal credit (UC), state pension credit (SPC), housing benefit (HB) and council tax rebate (CTR).

The test also applies to claims for UC/SPC/HB/CTR (and, except in Scotland, for housing) by British and Irish 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 test requires the claimant/applicant to be habitually resident in the ‘Common Travel Area’.

How the DWP make and notify decisions about habitual residence

UC law says a person is not entitled to benefit unless s/he is ‘in Great Britain’ and that:

• s/he cannot be in Great Britain unless s/he is ‘habitually resident’ in the Common Travel Area; and
• s/he cannot be habitually resident unless s/he has a ‘right to reside’.

In Northern Ireland, the requirement is to be ‘in Northern Ireland'. Apart from that, the law in Northern Ireland is the same as the rest of the UK (albeit in a separate set of regulations) and the Department for Communities (DfC) usually follows the same guidance as the DWP when making decisions.

The requirement to be in Great Britain/Northern Ireland is administered as a two-stage test. The DWP/DfC decision maker (DM) first decides if the person has a right to reside. If s/he does the DM will then decide if that person is habitually resident based on the particular facts in that case.

If benefit is refused the DM must notify the claimant (often a message in the claimant’s UC journal). The notice usually says the claimant is not entitled because they are ‘not in Great Britain/Northern Ireland’ and does not say why (i.e., no right to reside or not habitually resident). If that person has EU pre-settled status you should ask for a full statement of reasons. Decisions about the right to reside for EEA nationals are complex and DMs often make mistakes.

The same applies to decisions about HB – but in this case if benefit is refused for either reason the decision notice will tell the claimant it is because they are not habitually resident.

The claimant usually has one month to ask the DWP/DfC to reconsider and if the new decision does not give them everything they asked for, a further month to appeal to a tribunal. In either case if the claimant asks for a statement of reasons before the time limit has expired, the time limit is extended by 14 days (or 14 days from the date the DWP/DfC notifies the new decision, if later). For more information see: how to appeal.

Who is exempt from the habitual residence test?

The following people do not have to show they are habitually resident (in other words they are exempt from the test):

• a person granted refugee status or humanitarian protection
• a person granted discretionary leave to remain with no conditions about recourse to public funds
• a person who has been granted temporary leave under the under the migrant victims of domestic abuse concession
• from 27 October 2023, a person who was residing in Israel, Palestine, Lebanon or the occupied territories immediately before 7 October 2023 who left in connection with the Hamas terror attack or the violence that followed and who has been granted leave without a sponsor and with access to public funds
• a person who was resident in Sudan before 15 April 2023, who left due to the escalating violence and who has been granted leave without a sponsor and with access to public funds or who is a British citizen, Irish citizen or a Commonwealth citizen with a right of abode
• a person who was resident in Ukraine before 1 January 2022, who left due to the Russian invasion and who has been granted leave without a ‘no public funds’ condition or who is a British citizen, Irish citizen or a Commonwealth citizen with a right of abode
• a person who left Afghanistan:
  • who was previously employed by the British armed forces and who has been granted leave under the immigration rules by virtue of the Afghan Relocations and Assistance Policy (ARAP) or the Afghan Locally Employed Staff ex-gratia scheme (ALES),
  • who has been granted leave outside the immigration rules under the Afghan Citizens Resettlement Scheme (ACRS), or
  • who is of any nationality (Afghan, British, third country) who does not fall under any of the above schemes and who left Afghanistan in connection with the collapse of the Afghan government that took place on 15th August 2021
• a British Citizen, Commonwealth Citizen with a right of abode, or a person with settled status, who has arrived in the UK as a result of his/her deportation, expulsion or other removal by compulsion of law from another country
• a person with EU pre-settled status (or a person whose application to the EU Settlement Scheme has been accepted but not yet decided) whose right to reside under the EEA regulations is as:
  • a worker
  • a self-employed person
  • a frontier worker
  • a person who has retained their worker/self-employed status during temporary unemployment or sickness, etc.
  • a retired worker/self-employed person
  • the EEA family member of any of the above, or
  • the former family member of deceased worker/self-employed person.

(Note that the links in the above bullet list are to the England and Wales pages of the website)

In the case of claims for housing benefit or council tax rebate only, a person who is in receipt of income-related employment and support allowance or state pension credit (either kind) is exempt from the test.

People who have to pass the habitual residence test

All of the following people have to show that they are habitually resident to qualify for housing or benefits:

• a person with indefinite leave to remain, including a person with EU settled status (for more on ILR, click here for England and Wales and here for Scotland and Northern Ireland)
• EEA nationals with pre-settled status whose right to reside is not covered by the exemptions set out above (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 deportees and returning residents).

What is 'habitual residence'?

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 advice based on European law in Advice for Decision Makers (ADM) Chapter C1 (pdf) paragraphs C1946-75, as does the HB Guidance Manual, part C4 (pdf) (paragraphs C4.80-88 and C4.92-112), the English Homelessness Code of Guidance paragraphs 7.21-23 and Annex 1, and the Welsh Allocation of accommodation and homelessness guidance for local authorities (pdf) (paras. 2.18-2.24).

Gaining habitual residence

To be habitually resident in the UK a person must have taken up residence and lived here for a period. A person who leaves another country does not become habitually resident immediately on arrival, even if s/he came here voluntarily with the intention to settle. S/he must be resident in fact for an appropriate period of time which demonstrates that his/her residence has become, and is likely to remain, habitual in nature (see: Nessa v Chief Adjudication Officer [1999] UKHL 41 and ADM paragraph C1951). But different rules apply if a person is returning to the UK to re-establish his/her residence here (see below).

There are two main requirements to establish habitual residence (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 to 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, paras 18-19. The DWP and English homelessness guidance sources above suggest that the main factors to be taken into account 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 another and that the weighting given to each will depend on the particular facts of each case (see ADM paragraphs C1965-75, Code of Guidance, Annex 1 paragraphs 5-21).

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 appropriate weight, which will vary from case to case according to the particular facts. The failure to give appropriate weight to her very b ties to the UK created a risk that some people would be excluded on the grounds of income alone.

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 it resumes immediately on return from a short single 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.