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Habitual Residence Test

Find out more about the Habitual Residence Test.

1. What is the Habitual Residence Test?

All claimants have to pass or be exempt from the Habitual Residence Test in order to claim certain benefits and Tax Credits.  What benefits, tax credits and services does the Habitual Residence Test Apply to?

To pass the Habitual Residence Test you must show a ‘settled intention’ to stay here. In most cases, you also need to be actually resident in the Common Travel Area for a period of time. However, you may be accepted as habitually resident sooner if you were previously habitually resident.

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

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

All claimants have to pass or be exempt from the Habitual Residence Test in order to claim the following benefits, tax credits and services:

The Habitual Residence Test has two tests you have to satisfy:

  • The Right to Reside Test, and
  • Habitual Residence Test in fact.

You only have to pass the second test (Habitual Residence Test in fact) in order to claim the following benefits:

 

3. Who is exempt from the Habitual Residence Test?

The following are exempt from the Habitual Residence test for means-tested benefits:

  • 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
  • Refugees and people granted discretionary leave to enter or remain under humanitarian protection;
  • People granted the Destitution Domestic Violence Concessionary Leave.
  • People not subject to immigration control and have been deported, expelled or removed from another country to the UK

For Attendance Allowance, Carers Allowance, Disability Living Allowance and Personal Independence Payment, the above exemptions do not apply. 

However, you are accepted as habitually resident and present in the UK if:

  • You are abroad because you are serving in the armed forces or
  • You are living with someone who is abroad because they are serving in the armed forces, and you are their close relative.  A close relative would be a spouse, civil partner, son, stepson, daughter, stepdaughter, father, stepfather, father-in-law, mother, stepmother or mother-in-law.

4. How do I pass the Habitual Residence Test?

To pass the habitual residence test you must satisfy these three conditions:

and

  • For income-based JSA you must have been living in the common travel area for the past three months.

Right to Reside

The Right Reside Test is a complex area.  Read our guide on the Right to Reside Test for further information.

Habitual Residence in fact

Please see the next page on ‘Habitual Residence in fact’ for information on how to pass this test.

5. What is 'Habitual residence in fact'?

The key points in deciding whether you are ‘habitually resident’ in fact are:

  • You must be resident
  • You must show intention to settle (not necessarily permanently) in the Common Travel Area.
  • In most cases you must have been resident for an ‘appreciable period’.  How long this period has to be is not set out in the regulations, and depends on your circumstances.   Between one and three months residence is required in most cases, but it can be shorter. The stronger your intention to settle in the Common Travel Area the shorter this period is likely to be.

You may be accepted as habitually resident from your first day if you are returning to the country and you were previously habitually resident.

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

More information

You can use our Find an Adviser tool to find a local adviser to help you further.

6. I have failed the Habitual Residence Test. What should I do?

If you have been refused benefit because you failed the habitual residence test:

Find out why you failed the test, by checking the decision letter or, if the letter does not give clear reasons, contact whoever made the decision (DWP or local authority).

  • You can challenge the decision, by asking for a mandatory reconsideration within one month of the decision being made.  You can contact a local advice centre or Citizens Advice Bureau for help.
  • If the mandatory reconsideration is refused you can appeal.
  • You should also make a new claim even if you are challenging the decision.  This is because the benefit authority or Tribunal can only look at your circumstances at the date of the decision and not since.  You may qualify on a new claim because your circumstances have changed – for example simply living here for longer may mean you are accepted as having resided here for an ‘appreciable period.’
  • Check if you fit into one of the exempt categories for the habitual residence test.
  • The habitual residence test applies to the claimant.  If your partner has a better chance of passing the test, they could make a new claim and include you in their claim.  However, this will not work for Universal Credit, where both partners need to make a joint claim and both need to satisfy the Habitual Residence Test.

You should seek specialist welfare benefits advice if you have failed the Habitual Residence and require help with challenging a decision. 

You can use our Find an Adviser tool to find a local adviser to help you further.

 

January 2019