Habitual Residence Test and Benefits

A person not subject to immigration control who is not exempt from the habitual residence test must be habitually resident in the Common Travel Area to be eligible for the following welfare benefits:

• Universal credit (including housing costs)

• Housing benefit

• Income Support

• Income related jobseekers allowance

• Attendance allowance

• Carers allowance

• Disability Living Allowance

• Income related emplyement and support allowance

• Pension credit

• Personal independence payment

Note: for income based JSA only, the claimant must have been living in the Common Travel Area for the past three months.

The Common Travel Area comprises the UK, the Channel Islands, the Isle of Man and the Republic of Ireland.

Such people will be, for the most part, British citizens and citizens of the Republic of Ireland who have recently arrived in or returned to the UK, but the test will also be applied to EEA nationals.

The following EEA nationals are 'qualified persons' and are exempt from the habitual residence test for means-tested benefits: [1]

• workers or self-employed people, including those with ‘retained’ status

• family members, but not extended family members, of EEA nationals who are classed as workers or self-employed persons

• those with a permanent right to reside in the UK, as a result of being:

  • workers or self-employed persons who have retired or are permanently incapacitated.

  • family members of the above

This means that EEA nationals are ineligible for most benefits unless they fit one of these categories.

People who have come from Afghanistan to settle in the UK in connection with the collapse of the Afghan government on 15 August 2021 will be exempt from the habitual residence test.

An Afghan citizen may be in the UK under certain schemes which will also mean they are not subject to the habitual residence test such as:

• the Afghan Relocations and Assistance Policy (ARAP)

• the Afghan Citizens Resettlement Scheme (ACRS)

• the previous scheme for locally employed staff in Afghanistan, sometimes referred to as the ex-gratia scheme

Any person living in the UK under these conditions can apply for means-tested benefits. [2]

From 22 March 2022, people arriving in Scotland from Ukraine are exempt from the habitual residence test and past presence test for the following benefits: [3]

• Universal Credit

• Housing Benefit

• Disability Living Allowance

• Personal Independence Payment

• Attendance Allowance

• Carer’s Allowance

• Child Disability Payment

• Adult Disability Payment

• Best Start Grants

• Best Start Foods

• Young Carer Grant

This applies where they were living in Ukraine immediately before 1 January 2022 and left in connection with the Russian invasion which took place on 24 February 2022.

Whether a person is habitually resident must be decided according to all the circumstances in each case. The House of Lords held that a person cannot be habitually resident unless s/he has taken up residence in the Common Travel Area and lived in the Common Travel Area for an 'appreciable period'. [4] Each case turns on its own facts, but factors such as bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, and demonstrating durable ties with the country are among the factors that require consideration.

DWP guidance (relating to housing benefit claims) provides that victims of 'forced marriage' do not lose their habitual residence in the UK and are therefore viewed as being habitually resident from the outset of their claim. This refers to individuals who have been removed from the UK where they are normally resident, (or who have left the UK voluntarily, for example for a holiday), and have subsequently been detained abroad against their will. This means that they have been prevented from residing habitually in the UK through no fault of their own. [5]

The following is based on case law from English courts:

• in deciding if someone is habitually resident or not, account needs to be taken of all the applicant's circumstances, such as personal ties, stability of employment, past residence and intentions. The applicant must show that s/he has taken up residence in the UK voluntarily and for settled purposes, and that s/he has lived here for a sufficient period of time. What amounts to a sufficient period of time depends on the circumstances of each case. [6]

• where there is a settled purpose, and depending on the specific circumstances, habitual residence may be acquired after a relatively brief period of stay. In one case, a period of one month's residence was considered sufficient [7]

• where there are factors pointing both for and against habitual residence, the court must weigh them all up, and avoid focusing too narrowly on some factors over others. For habitual residence there must be some degree of integration in a social and family environment [8]

• a High Court decision dealing with non-EU nationals gives a clear analysis of the habitual residence test in the homelessness context, explaining the need for an appreciable period of time in the UK and a settled intention to return. [9]

Guidance on the habitual residence test is available from various sources:

• UK case law

• Upper Tribunal (and previously, Social Security Commissioners') decisions in means-tested benefits cases

• HB/CTB Circulars and the HB/CTB Guidance Manual [10]

• The European Commission [11]

• case law from the European Union.

In UK law, the concept of 'habitual residence' has sometimes been given the same meaning as 'ordinary residence', which features in other legislation. The House of Lords held that 'ordinary' required that the residence should be adopted voluntarily and for a settled purpose. A settled purpose could be for a limited period; there is no need for the person to wish to stay indefinitely. The reasons for the person's presence in the UK could include education, employment, family matters, health, or merely 'love of the place'. [12]