Habitual Residence Test and Benefits

Information on the Habitual Residence Test (HTR) which applicants must fulfill to be eligible for certain benefits.   

The rules on eligibility for welfare benefits depend on factors other than the habitual residence test and this can be a complicated area of law.  Advisers who are unsure about what their client might be entitled to may want to contact CPAG in Scotland or another specialist advice services for more detailed advice.

This content applies to Scotland

What is the habitual residence test?

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.

EEA nationals the habitual residence test

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

  • workers or self-employed persons, 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.

What this means in practice is that EEA nationals are ineligible for most benefits unless they fit one of these categories of 'qualified persons'. See the section on qualified persons for more details about these categories.

Determining habitual residence

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'. [2] 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.

Forced marriage

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. [3]

Case law

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. [4]

  • 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 [5]

  • 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 [6]

  • 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. [7]

Other sources of guidance

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 [8]

  • The European Commission [9]

  • 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'. [10]

Last updated: 27 January 2020

Footnotes

  • [1]

    reg 10(3B) Housing Benefit Regulations 2006 SI 2006/213; reg 10(4A) Housing Benefit (Persons who have Attained the Qualifying Age for State Pensions Credit) Regulations 2014 SI 2014/214; reg 9(4) Universal Credit Regulations 2013 SI 2013/376

  • [2]

    Nessa v Chief Adjudication Officer [1999] 1 WLR 1937

  • [3]

    HB/CTB Circular A22/2010, Department for Work and Pensions

  • [4]

    Nessa v Chief Adjudication Officer [1999]1 WLR 1937, HL

  • [5]

    Re F (A Minor) (Child Abduction) [1992] 1 FLR 548

  • [6]

    Re R (A Child: Habitual Residence) [2014] EWCA Civ 1032

  • [7]

    R (on the application of Paul-Coker) v Southwark LBC [2006] EWHC 497 (Admin)

  • [8]

    see part C13 HB/CTB Guidance Manual, DWP; HB/CTB Circular A9/2006.

  • [9]

    Practical Guide: The legislation that applies to workers in the European Union, the European Economic Area and in Switzerland, European Commission, November 2012 (updated January 2014)

  • [10]

    Shah v Barnet LBC [1983] 2 AC 309; [1983] 1 All ER 226