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What is the habitual residence test?

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What is 'habitual residence'?

The purpose of the test is to stop someone claiming social benefits immediately when they enter the UK. Most applicants for local authority 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, housing benefit and other passport benefits (e.g. income support, state pension credit, etc.). 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 advice based on European law in Advice for Decision Makers (ADM), Chapter C1 paragraphs C1946-76, as does the HB Guidance Manual, part C4 (paragraphs C4.80-93), the English Homelessness Code of Guidance paragraphs 7.18-20 and Annex 1, and the Welsh Code of Guidance to Local Authorities (paras. 2.18-2.24).

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.

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 has been granted temporary leave under the under the destitution domestic violence concession
  • an EEA national (and his/her family members) who is in self-employment, including periods when s/he is temporarily not working due to sickness
  • an EEA national (and his/her family members) who is employed
  • an EEA national (and his/her family members) who is temporarily unable to work but who has retained his/her worker or self-employed status
  • an EEA national who in certain circumstances, has retired from employment or self-employment in the UK due incapacity or old age
  • 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
  • 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 or council tax rebate only, a person who is in receipt of any one of the following benefits:

  • income support
  • income-based jobseeker's allowance , but only if s/he has a right other than as a jobseeker (e.g. if s/he has permanent residence under the five year rule)
  • income-related employment and support allowance, or
  • state pension credit.

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 (for more on ILR, click here for England and Wales and here for Scotland)
  • a national of North Macedonia or Turkey – other than those covered by one of the exemptions set out above
  • EEA nationals 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).

Gaining habitual residence

To be habitually resident in the UK a person must have actually 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 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 MHCLG homelessness guidance sources above suggest that the main factors to be taken into acount 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 C1965-74, 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 strong 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 the following points apply about temporary absence:

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.

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