What is the habitual residence test?
This page covers the whole of the UK
Contents:
What is the habitual residence test?
The habitual residence test prevents you from qualifying for housing and benefits immediately after arriving in the UK if you were previously settled abroad. It applies if you have a right of permanent residence, including as a British citizen, and operates alongside the immigration status test, which disqualifies people from housing and benefits if they do not have that right. For example, it may apply if you are a British citizen born abroad to British parents and are entering the UK for the first time.
Disqualification period and exemptions
If you fail the test, you are disqualified from housing and benefits for a short period, usually one to three months. After this, you are normally treated as settled and habitually resident.
You may be exempt from the test in certain circumstances, usually where you had to leave your country of origin immediately because of risks to your health or safety, for example if you are a refugee, escaping the war in Ukraine or have been trafficked. The exemptions differ depending on whether you are applying for housing or homelessness assistance or claiming benefits, although many apply to both. If none apply, the housing or benefits authority decides whether you are habitually resident based on the facts of your case. The DWP calls this being ‘factually habitually resident’.
EU pre-settled status habitual residence
If you have EU pre-settled status, have lived in the UK for more than three months and are not working, you may be told you are not habitually resident. This is because the law says you cannot be habitually resident unless you have a right to reside. If this happens, check whether you have a right to reside by reading the pages on other EEA nationals and EEA family members.
How decisions are made – who is factually habitually resident
The term ‘habitual residence’ is not defined in the law. It is assessed on the facts of each case, with no fixed rules applying in every situation.
If you are not already habitually resident, it is generally accepted that establishing habitual residence can take one to three months. This is normally the maximum period for which you may be disqualified. If the period is much longer, the decision-maker should provide compelling reasons.
The exact period will depend on the length, continuity and nature of your residence. It will usually be shorter if you are returning to the UK to resume previous residence than if you are entering the UK for the first time.
Habitual residence has two elements:
- you must actually live here — having an intention to settle, or simply being physically present, is not enough
- your residence must have some permanence. You must be settled enough to be making your home here. It does not need to be your only or permanent home, but it must be your genuine home for the time being. You must intend to settle and live here for an appreciable period, usually one to three months.
Factors used to decide whether a period is appreciable include:
- the length and continuity of your residence
- your reasons for coming to the UK
- your future intentions
- your employment prospects
- your 'centre of interest' (see below).
The weight given to each factor depends on the facts of your case. No single factor is decisive, and a factor that matters in one case may carry less weight in another.
Your education and qualifications may be relevant to your employment prospects. A job offer is usually strong evidence that you intend to settle. If you have stable employment, you are presumed to be resident here even if your family lives abroad.
Your ‘centre of interest’ means your ties to this country. This can include close relatives living here, the location of your personal possessions, significant purchases such as furniture that show long-term commitment, or membership of clubs or organisations linked to your hobbies or recreation.
Once you have established habitual residence, it usually resumes immediately when you return after a short absence, such as a holiday. However, the nature and purpose of the absence remain relevant. You can lose habitual residence in a single day and, once lost, it does not resume automatically when you arrive, even if you intend to settle here. For example, this may happen if you leave the UK to start work abroad.
