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 EEA
state.
What benefits, tax credits and services does the
Habitual Residence Test apply to?
The right to reside part of the HRT also applies to:
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Who is exempt from the Habitual Residence Test?
The following EEA nationals (the 27 EU member states plus
Iceland, Liechtenstein and Norway) and A2 nationals (Bulgaria and
Romania) 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 working in accordance with their accession worker
authorisation document.
Others who are exempt from the Habitual Residence test
include:
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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 right to reside they will then see if you
are ‘habitually resident in fact’.
To be eligible for the benefits listed above you
must satisfy both parts, unless you are exempt from the Habitual Residence
Test.
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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.
British citizens will always have a right to reside.
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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.
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
- Worker
- Self-employed person
- Self-sufficient person
- Student.
To have a permanent right of residence, you normally have to
have lived in the UK as a qualified person for five years. Some
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.
People who have a right to reside only because of the initial
three month rule (they are not a 'qualified person') will not
satisfy the 'right to reside' aspect of the habitual residence test
for:
The rules are different for income-based Jobseeker's Allowance.
An EEA national who is a jobseeker can claim this benefit within
the initial three month period. Those who claim this benefit can
then be passported to Housing Benefit and Council Tax Benefit
without having to satisfy the Habitual Residence Test.
All EEA nationals/family members within the initial three month
right of residence period can claim Child Benefit and Child Tax Credit. However, entitlement will end
after the three month period unless they maintain a right to reside
as a 'qualified person'.
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A2 nationals
It is more difficult for an A2
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.
The restrictions on the residence rights of A2 nationals are due
to end on 31 December 2013.
See the UK
Border Agency information for more information (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 most cases have been so for an
‘appreciable time’ - no set period is given
- You must show intention to settle (not necessarily
permanently).
The stronger the settled intention, the shorter the actual
residence need be and vice versa. 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 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: 2 November 2012
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