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Are you a returning British or Irish Citizen?
As a British or Irish citizen you are also a citizen of the European Union and as such have rights when you exercise your freedom of movement in the EU.
So a British citizen who has never left the UK does not have any ‘extra’ rights as a citizen of the EU. But once you leave the UK to use those rights in another EU country, you bring those rights back home with you. These rights are called ‘Surinder Singh’ rights (after the case that established them) and include the right to live in the UK with your family members, as defined in EU law.
If you are an Irish citizen living in the UK, you may have EU rights if you have an EU right to reside in the UK, which is created by working, studying, self-employment, etc. See the relevant pages for how this works, e.g. for European workers and self-employed people. If you have an EU right to reside then that carries with it other rights. For example, an Irish citizen working in the UK does not have to pass the ‘habitual residence test’ to be eligible for benefits or housing and has the right to live in the UK with his or her family members. But if you do not have any EU rights in the UK, your ‘right of abode’ takes precedence.
Are you the family member of a British Citizen?
Different rules apply regarding your rights to housing and/or benefits if you are the family member of a British citizen.
Other British nationals and Commonwealth citizens
If you have a form of British nationality which is not British citizenship (e.g. if you are from a UK overseas territory) your rights to housing and benefits are the same as any other non-European foreign national and depend on whether you have been granted indefinite leave or limited leave by a UK immigration officer. You are not an EU citizen so you cannot acquire EU rights except as a family member (e.g. if you are the spouse of an EU national).
If you are a Commonwealth citizen with a ‘right of abode’ your rights to housing and benefits are the same as British citizen. You are not an EU citizen so you cannot acquire EU rights except as a family member (e.g. if you are the spouse of an EU national).
How does this affect your rights to housing and benefits?
If you are applying for housing and/or benefits, no matter what your nationality is you have to show that:
- you have a legal right to live in the UK; and
- you are habitually resident in the British Isles or the Republic of Ireland.
If you are a British or Irish citizen who has always lived in the UK or Ireland then you meet these conditions. But the habitual residence condition may disqualify you from housing or benefits if you have lived abroad (i.e. you were habitually resident there) and are returning to the UK or if you are entering the UK for the first time (for example, if you acquired your citizenship through your parents).
How do you meet the habitual residence test if you are British or Irish?
If you are returning to the UK after having lived abroad you can satisfy the habitual residence test and qualify for housing and/or benefits in the following ways:
- Through actual habitual residence. This requires more than just physical presence: you must be actually resident here and there must be a degree of permanence about it. The word ‘habitual’ implies an intention to settle and make your home here. If you have recently entered the UK you can expect to be considered not habitually resident during your first few months but your case should be considered on its facts (for example, the length of time you have lived abroad and whether your absence was always intended to be temporary). Note that your habitual residence resumes immediately on your return if you have a single short absence (such as a holiday or visiting relatives).
- Returning from work in Europe. Your habitual residence resumes immediately on your return to the UK after a period of work in another EEA member state (other than the UK or the Republic of Ireland).
- People from Montserrat. In the case of your application for housing or homelessness assistance you do not have to be habitually resident (and are entitled) if you left the island of Montserrat due to the volcanic eruption in 1995.
In the case of an application for housing benefit and council tax rebate only (but not for housing or homelessness assistance) you do not have to be habitually resident (and are entitled):
- if you have a ‘right of abode’ or settled status and have been deported to the UK from another country
- if you get one of the following DWP benefits: state pension credit, income-related employment and support allowance, income support or income-based jobseeker’s allowance (but note that you are disqualified from getting income-based jobseeker’s allowance during your first three months residence).
If you have not been living in the UK/Ireland for the past three months you are likely to be disqualified from jobseeker’s allowance but this should not affect your claim for HB/CTR provided you can show you are actually habitually resident. If you have been disqualified from HB/CTR because you do not qualify for JSA you should seek advice.
