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Habitual Residence Test

Key information

To claim most means-tested benefits in the UK, you have to satisfy the Habitual Residence Test (HRT). This section explains more about this.

Please note: the HRT applies to everyone, including British citizens.

Applies to: England, Wales, Scotland and Northern Ireland

NB: This is a very complex area of the law so it is important that you seek specialist advice. You can use our Find an Adviser tool to find a local adviser to help you further.

 

Index

You can read through this information sheet, or go directly to the sections you want to read by clicking on these links:

What is the Habitual Residence Test?

If you are a migrant to the UK, to claim most benefits you have to satisfy the Habitual Residence Test (HRT) which includes having a right to reside. To pass the HRT you must show a 'settled intention' to stay here.

In most cases, you also need to be actually resident for a period of time. You may be accepted as habitually resident from your first day if you are returning to the country and you were previously habitually resident or you or a member of your family is a national of or worked in another European Economic Area (EEA) country.

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What benefits, tax credits and services does the Habitual Residence Test apply to?

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Who is exempt from the Habitual Residence Test?

The following EEA nationals are exempt from the Habitual Residence test:

  • EEA nationals who have ‘worker’ or ‘self employed’ status – and their family members
  • EEA nationals who have permanent right to reside as a worker or self employed person who have retired or become permanently incapable of work – and their family members
  • A2 nationals (Bulgarian and Romanian) and Croatian nationals working in accordance with their accession worker authorisation document

Others who are exempt from the Habitual Residence test include:

  • Refugees
  • People with exceptional leave to enter or remain in UK or humanitarian protection
  • People who left Montserrat after 1 November 1995 because of the volcanic eruption
  • People who came to the UK from Zimbabwe between 28/2/09 and 18/3/11 and have received Government assistance to settle

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What are the two parts of the Habitual Residence Test?

  • Right to reside – in the Common Travel Area (UK, Ireland, the Channel Islands and the Isle of Man)
  • Habitually resident in fact

Regulations state that you can’t be habitually resident unless you have the right to reside in the Common Travel Area. Therefore the Department for Work and Pensions (DWP) will check ‘right to reside’ first and if you have the right to reside they will then see if you are ‘habitually resident in fact’.

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Right to reside

The main group of people affected by right to reside rules are EEA nationals.

Non EEA nationals will be subject to immigration rules and their right to benefits will be defined by their immigration status. Those with ‘leave to enter’, or ‘leave to remain’, have a right to reside during that period of leave. Most with ‘limited leave to remain’ will have their recourse to public funds restricted.

See our information for Nationals of non-EEA countries for further details.

British citizens will always have a right to reside, however, a residency rule has been introduced for EEA job seekers and this also applies to British citizens who are job seekers and have recently returned after a period of three or more months abroad. See EEA job seekers.

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EEA nationals

All EEA nationals and their family members have the right to reside in any other member state for a period of three months.

People who have a right to reside only because of the initial three month rule will not satisfy the 'right to reside' aspect of the habitual residence test for:

To have a right to reside after three months, you must:

  • Be a 'qualified person', or
  • Have the right of permanent residence, or
  • Have a derivative right to reside.

To be a 'qualified person' you must be a:

  • Jobseeker (for up to 6 months - a limited extension may be granted if you pass a Genuine Prospect of Work assessment.)   
  • Worker (must earn over £153 a week - the level at which national insurance starts being paid)
  • Self-employed person
  • Self-sufficient person
  • Student.

You normally acquire permanent right of residence by:

  • living in the UK as a qualified person for five years; or
  • in some cases, people who have worked or been self-employed in the UK and have retired may also acquire a right of permanent residence.

To have a 'derivative right to reside':

  • You must be the primary carer of a child under the age of 18 who is in education, and
  • You must have previously been a worker while the child was in the UK, and
  • The child would not be able to continue their education if you had to leave the UK.

EEA job seekers

An EEA national who is a job seeker used to be able to claim income-based Jobseeker's Allowance (JSA), Child Benefit and Child Tax Credit within the initial three month right of residence period and as a result would be able to claim Housing Benefit and Council Tax Support as well.

This is no longer the case. If the EEA jobseeker (or British citizen returning from abroad) hasn't worked since arriving in the UK, a three month residency rule has been introduced. In order to make a JSA claim they will have to provide evidence of how long they have been living in the UK (or the Common Travel Area), for example, a travel document, utility bill or tenancy agreement, to show they have been living here for at least three months.

If it is decided that there is not sufficient evidence they will not pass the Habitual Residence test so won't be able to get JSA, Child Benefit or Child Tax Credit.

For Child Benefit and Child Tax Credit there are exceptions to the 3 month residency rule, covering people who:

  • usually live in the UK and were receiving Child Tax Credit when they moved abroad for less than 1 year
  • had lived in the UK for 3 months when they moved abroad for less than 1 year

Other exceptions can be found on the GOV.UK website (link opens in a new window).

EEA job seekers will also have to answer more individually-tailored questions and provide more detailed answers about what efforts they have made to find work before coming to the UK and whether their English language skills will be a barrier to them finding employment.

If a JSA claim made by a EEA jobseeker or retained worker is successful it will be time-limited to 6 months unless they can demonstrate they are actively seeking work and have a genuine prospect of work.

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Croatian nationals

Although members of the EEA, it is more difficult for a Croatian national to be considered a ‘qualified person’ as they do not gain right to reside from being a jobseeker and only gain right to reside as a worker if they have an accession worker registration document.

Croatia became an EEA member in July 2013 and restrictions on benefit entitlement can be imposed for up to five years so for Croatian nationals these restrictions are expected to remain in place until 2018.

See the Gov.uk website information for Croatian nationals working in UK (link opens in a new window)

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'Habitual residence in fact'

Proving someone is ‘habitually resident in fact’ relies on case law as there is no definition in the Regulations of ‘habitual residence’.

Some key points:

  • You must be resident (and in some cases have been so for at least 3 months)
  • You must show intention to settle (not necessarily permanently).

You may be accepted as habitually resident from your first day if you are returning to the country and you were previously habitually resident or you or a member of your family is a national of, or has worked in, another European Economic Area (EEA) state.

British citizens who have lived abroad and are returning to the UK will still have to show that they are 'habitually resident in fact'.

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European Community rules

If you are an EEA national you may be able to benefit from European Community rules.

For more information, see the Home Office UK Border Agency's website (link opens in a new window).

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Last updated: 1 July 2014

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